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
Table of Contents
Chapter 1 Introduction
1.1. Scope and Research Objectives
1.2. Conceptual Framework, Method and Materials
1.3. Limitations of the Study
1.4. Literature Review
Chapter 2 Climate Change: The reality of a warming planet
2.1. Introduction
2.2. The Tragedy of the Global Commons
2.3. The Science of Climate Change
2.4. Historical Development
2.4.1. Consensus Building
2.4.2. Consolidation of Expert Knowledge
2.4.3. The Road to New York
2.5. Establishment of a Global Climate Regime
Chapter 3 The Precautionary Principle
3.1. Introduction
3.2. The Origin of the Precautionary Principle
3.3. Historical Development
3.4. The Precautionary Principle under Climate Change Regime
3.5. Different Formulations of Precaution
3.6. Criteria for Precautionary Action
3.7. Issues and Defences
3.8. Analysis of the Definition of Precautionary Principle under International Law
3.9. Standard of Proof
Chapter 4 The Precautionary Principle and Climate Change
4.1. Uncertainty factor
4.2. The Precautionary Approach to global warming
4.3. Wait-and-see Approach
4.4. Impacts of Global Warming
4.5. The Role of Global Community
Chapter 5 The Precautionary Principle and International Law
5.1. Introduction
5.2. Sources of international Law
5.3. Customary International Law
5.4. Definition and Elements of International Custom
5.5. Analysis of the Precautionary Principle as Custom
Chapter 6. Conclusions
Research Objectives and Core Themes
The primary objective of this work is to explore the role and validity of the precautionary principle within the international legal system, specifically addressing its relevance to climate change mitigation and its potential status as customary international law.
- The historical development and legal definitions of the precautionary principle.
- The scientific and political challenges posed by global climate change.
- The tension between traditional "wait-and-see" approaches and proactive precautionary measures.
- The analysis of state practice and opinio juris to determine the standing of the principle as binding international custom.
Excerpt from the Book
3.9. Standard of Proof
A key issue that is equally controversial in the debates over the precautionary principle is the standard of proof attached to potential risks involving uncertainty. For instance, if a new substance is developed for a particular purpose, what is the level of proof required before the precautionary principle is set in motion? As previously mentioned, Sandin (1999: 7) proposes a degree of evidence in qualitative terms, such as ‘strong scientific evidence’, ‘scientifically supported strong suspicions’, or some versions of the de minimis principle prior to the application of the precautionary principle (See subchapter 3.7). On this point, the European Commission has chosen the standard ‘reasonable grounds for concern’, to wit:
“The Community has consistently endeavoured to achieve a high level of protection, among others in environment and human, animal or plant health. In most cases, measures making it possible to achieve this high level of protection can be determined on a satisfactory scientific basis. However, when there are reasonable grounds for concern that potential hazards may affect the environment or human, animal or plant health, and when at the same time the available data preclude a detailed risk evaluation, the precautionary principle has been politically accepted as a risk management strategy in several fields.” [italics supplied] (EC, 2000: 9)
The EEA (2001: 193), on the other hand, suggested that the proof requirement in specific issues should be based on a number of factors, namely: “size and nature of the potential harm, the claimed benefits, the available alternatives, and the potential costs of being wrong in both directions”.
Chapter Summaries
Chapter 1: This chapter defines the scope, methodology (influenced by legal positivism), and limitations of the research, while also providing a review of the existing literature.
Chapter 2: This chapter outlines the reality of climate change as a global environmental issue, discussing its history, scientific basis, and the tragedy of the global commons.
Chapter 3: This chapter provides an in-depth examination of the precautionary principle, including its origins, various formulations, criteria for action, and the standard of proof required.
Chapter 4: This chapter analyzes the application of the precautionary principle specifically within the context of the climate change regime and the role of the public.
Chapter 5: This chapter investigates the status of the precautionary principle as international customary law by evaluating state practice and opinio juris.
Chapter 6: This chapter concludes that the precautionary principle represents a shift away from traditional wait-and-see approaches and constitutes a significant, emerging norm in international environmental law.
Keywords
precautionary principle, climate change, international law, customary international law, environmental policy, uncertainty, state practice, opinio juris, sustainable development, greenhouse gases, UNFCCC, Kyoto Protocol, risk management
Frequently Asked Questions
What is the primary focus of this thesis?
The work examines the precautionary principle within international law and its specific relevance and application in the context of the global climate change crisis.
What are the central themes discussed in the paper?
Key themes include the legal formulation of the precautionary principle, the scientific uncertainty surrounding global warming, the role of international agreements, and the evaluation of whether the principle has become binding customary international law.
What is the main research question?
The research seeks to determine the relevance of the precautionary principle under the climate change regime, how it is defined in international conventional law, and whether it has emerged as a binding international custom.
Which scientific method is utilized in this study?
The study is primarily based on legal research influenced by the theory of legal positivism, complemented by a multi-disciplinary approach that includes environmental studies, systems thinking, and interviews with experts.
What is covered in the main body of the work?
The main body covers the development of the global climate regime, the history and criteria of the precautionary principle, its integration into international agreements, and a legal analysis of state practice and customary norms.
Which keywords best describe this research?
Important keywords include precautionary principle, climate change, international law, state practice, opinio juris, and customary international law.
How does the author define the "basic formulation" of the precautionary principle?
The author identifies three fundamental elements: the risk of serious damage to human health or the environment, a lack of absolute certainty, and the requirement for reasonable action to address the threat.
How does the author address the criticism that the precautionary principle is "unscientific"?
The author argues that the principle does not contradict science; rather, it provides a framework for decision-making in situations where scientific uncertainty exists, and emphasizes that most agreements calling for the principle also mandate further scientific research.
- Quote paper
- Atty. Rabbi Deloso (Author), 2006, The Precautionary Principle - International Law and Climate Change, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/183852
