The Precautionary Principle

Appendix

The precautionary principle

As it appears in Danish regulations, in the Environmental Report 1995, and in other international declarations.

DANISH ENVIRONMENTAL PROTECTION AGENCY, MAY 1998

INTRODUCTION

This document aims to present the precautionary principle as it appears in Danish legislation; in the Environmental Report 1995, which was presented by the Minister of Environment and Energy in June 1995, and in international declarations.

DANISH LEGISLATION AND THE PRECAUTIONARY PRINCIPLE

The precautionary principle in legislation

The principle is not explicitly mentioned in the legislation, but it is often reflected in the introductory comments to various environmental acts. Presented here is a series of such introductory comments to some of the central environmental acts, i.e. the Environmental Protection Act, the Chemical Substance and Product Act, the Marine Environment Act, and the Gene Technology Act.

The Environmental Protection Act:

‘1.-(1) The purpose of this Act is to contribute to safeguar-ding nature and environment, thus enabling a sustainable social development in respect of human conditions of life and for the conservation of flora and fauna.

(2) The objectives of this Act are in particular:
1) to prevent and combat pollution of air, water, soil and subsoil, and nuisances caused by vibration and noise,
2) to establish regulations based on hygienic considerations which are significant to Man and the environment,
3) to reduce the use and wastage of raw materials and other resources,
4) to promote the use of cleaner technology, and
5) to promote recycling and reduce problems in connection with waste disposal.

2.-(1) This Act applies to:
1) all activities which by emission of solid, liquid or gaseous substances, by release of micro-organisms likely to harm health and the environment or by generation of waste may cause pollution of air, water, soil and subsoil,
2) vibrations and noise,
3) products or goods likely to cause pollution in connection with manufacture, storage, use, transport or disposal,
4) means of transport and other mobile facilities likely to cause pollution, and
5) animal husbandry, vermin and other matters likely to cause problems of hygiene or significant nuisances to the sur-roundings.

(2) This Act also applies to activities involving hazardous processes, and to storage of substances with dangerous propert-ies, in such a way that interruption of operation or accidents may result in imminent risks of pollution as specified in subsection (1) above.

3.-(1) In the administration of this Act weight shall be given to the results achievable by using the least polluting technolo-gy, including least polluting raw materials, processes and plants and the best practicable pollution control measures. In this evaluation special consideration shall be given to preventive measures in the form of cleaner technology.

(2) When determining the extent and nature of measures to prevent pollution consideration shall be given to:
1) the nature of the physical surroundings and the likely impact of pollution thereon, and
2) the whole cycle of substances and materials, with a view to minimizing wastage of resources.’

The Chemical Substance and Product Act:

‘1.-(1) The purpose of the Act is to prevent hazards to health and the environment in connection with the manufacture, storage, use, and disposal of chemical substances and products.

(2) In the administration of this Act weight may be given to the opportunities of furthering the use of cleaner technology, and of limiting problems in connection with disposal.

2.-(1) The Act shall ensure the production of necessary information on chemical substances and products sold in Denmark, and ensure that regulations can be made on the sale and use of chemical substances and products which are, or which on the basis of experience or existing tests can be assumed to be, hazardous to health or damaging to the environment.

(2) When determining the extent and nature of measures taken as a result of this Act to prevent damage to the environment, consideration shall be given to the environmental damage the substance or product may cause, and to the technical and economic consequences, including the cost of such measures to society and to the manufacturers, importers, and consumers in question.’

The Marine Environment Act:

‘1.-(1) The purpose of this Act is to contribute to safeguar-ding nature and the environment, thus enabling sustainable social development in respect of human living conditions and for the conservation of flora and fauna.’

The Gene Technology Act:

‘1.-(1) The purpose of this Act is to contribute to safeguar-ding nature and environment, thus enabling sustainable social development in respect of human living conditions and for the conservation of flora and fauna. This Act shall also contribute to protecting human health and nutrition in connection to gene technology.

(2) When determining the extent and nature of measures taken as a result of this Act to prevent undesired effects on the environment, nature, and human health, consideration shall be given to the nature of external surroundings and ecological conditions, and to the risk of undesired effects.’

THE PRECAUTIONARY PRINCIPLE IN THE ENVIRONMENTAL REPORT 1995

The precautionary principle is mentioned several times in the Environmental Policy Report 1995, which was presented by the Minister of Environment and Energy, Svend Auken in June 1995.

The principle is mentioned first on page 33:
‘Long-term effects
The government is aware of the long-term effects of development on health and welfare and will apply the precautionary principle in order to avoid leaving future generations with impaired environmental conditions or increased costs for maintaining health and welfare.’

It is found again on page 34:
‘There is a particular need for being aware of the fact that technical and economic developments may have environmental consequences that cannot be fully predicted at the time of the decision-making process. For this reason, the government gives especial weight to two principles in regard to environmental policies: the precautionary principle and the principle that the polluter pays.’

And on page 43:
‘The Objectives
The objectives for environmental efforts and measures should remain as follows: High-quality nature and environment, long-term perspectives, minimal resource consumption, overall assessments including considerations of systems and cycles, prevention at source, and application of the precautionary principle.

And finally on page 51:
‘The precautionary principle
It is crucial to ensure that sufficient knowledge exists in most areas about the connections between developments in society and environmental conditions, so that it is possible to indicate what direction these developments should take. The precautionary principle is to ensure that action is taken, even if full knowledge of all specific connections does not exist. It is also important to ensure continuous production of new information and knowledge and to communicate this information to enterprises and the public.’

INTERNATIONAL DECLARATIONS ON THE PRECAUTIONARY PRINCIPLE

The first actual mention of the precautionary principle in connection with legislation was in German legislation in 1976, where it is called the Vorsorgeprinzip:
‘Environmental policy is not fully accomplished by warning off imminent hazards and the elimination of damage which occurred. Precautionary environmental policy requires furthermore that natural resources are protected and demands on them are made with care.’

The precautionary principle is also mentioned in the conclusion from the first North Sea Conference in 1984, and the principle itself is includes in the ministerial declarations from subsequent North Sea Conferences. For instance, the ministerial declaration from the second North Sea conference in 1987 says:

‘Accepting that, in order to protect the North Sea from possible 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.’

After this, and in various wording, the precautionary principle has been repeatedly incorporated in a series of international treaties and declarations. In many of these the principle has been connected mainly to hazardous chemical substances, but there are also examples of broader approaches to environmental issues as such.

What follows are selected declarations on the application of the precautionary principle found in regional and global treaties, conventions, and declarations and declarations by selected NGOs.

1. General international declarations

1.1 The Bergen Declaration

The ministerial declaration on sustainability (Bergen, 1990) in the ECE region (Europe, USA, and Canada) says in section 7:

‘In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.’

1.2 The Rio Declaration

The declaration from the global summit meeting on the environment and development in Rio (1992) contains the following:

‘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’.

1.3 EU

The EU Treaty (Maastricht, 1992) contains the following in article 130 R:

‘(2) Union environmental policy aims at a high level of protection with due consideration given to the diverse conditions of the various areas of the Union. It is based on the precautionary principle and the Principle of Prevention, the Principle of Reduction at Source, and the Polluter Pays Principle. The requirements of environmental protection shall be integrated in the shaping and implementation of Union policy in other areas. In this connection the approximation measures that must be implemented to fulfil these demands must, in relevant cases, include a safeguard clause authorising Member States to implement temporary measures that are subject to Union control procedures. These measures must be based on non-economic environmental considerations.

(3) In the preparation of Union environmental policy consideration is given to:

The European Union programme for sustainable development and environmental policies from 1992 has the following in its preamble:

‘ACKNOWLEDGE that the programme presented by the Commission has been designed to reflect the objectives and principles of sustainable development, preventive and precautionary action and shared responsibility set out in the declaration of the Heads of State and the Government of the Community meeting in Council on 26 June 1990 and in the Treaty on European Union signed at Maastricht on 7 February 1992’.

Later, in chapter two of the action programme on ‘A new strategy for the environment and sustainable development’ we find the following:

‘In accordance with the European Council’s Declaration ‘The Environmental Imperative’ the guiding principles for policy decision under this Programme derive from the precautionary approach and the concept of shared responsibility, including effective implementation of the Polluter Pays Principle’.

2. Specific international declarations

Apart from the more general decisions about the precautionary principle, a number of declarations on more specific environmental areas have been agreed on at a series of regional and international summit meetings and conferences. Most of these declarations concern protection of the marine environment. Besides this there are declarations on the ozone layer, climate changes, and biological diversity.

2.1 Protection of the marine environment

The conclusions from the first North Sea Conference in Bremen (1984) say among other things:

‘Conscious that damage to the marine environment can be irreversible or remediable only at considerable expense and over long periods and that, therefore, coastal states and the EEC must not wait for proof of harmful effects before taking action.’

The ministerial declaration from the second North Sea Conference in London (1987) has the following phrasing in section 7:

‘Accepting that, in order to protect the North Sea from possible 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.
‘(The participants) accept the principle of safeguarding the marine ecosystem of the North Sea by reducing pollution emissions of substances that are persistent, toxic and liable to bioaccumulate at source, by the use of best available technology and other appropriate measures. This applies especially when there is reason to assume that certain damage or harmful effects on the living resources of the sea are likely to be caused by such substances, even where there is no scientific evidence to prove a causal link between emissions and effects (‘the principle of precautionary action’).’

The preamble of the ministerial declaration from the third North Sea Conference in Haag (1990) contains the following:

‘(The participants) will 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 bioaccumulate even where there is no scientific evidence to prove a causal link between emissions and effects.’

The ministerial declaration from the fourth North Sea Conference in Esbjerg (1995) contains the following:

‘The Ministers AGREE that the objective is to ensure a sustainable, sound and healthy North Sea ecosystem. The guiding principle for achieving this objective is the precautionary principle. This implies the prevention of the pollution of the North Sea by continuously reducing discharges, emissions and losses of hazardous substances thereby moving towards the target of their cessation within one generation (25 years) with the ultimate aim on concentrations in the environment near background values for naturally occurring substances and close to zero concentrations for man-made synthetic substances.’

The Paris Convention (1989) on protection against marine pollution from land-based installations has the following in its recommendations:

‘ACCEPT the principle of safeguarding the marine ecosystem of the Paris Convention area by reducing at source polluting emissions of substances that are persistent, toxic, and liable to bioaccumulate by the use of the best available technology and other appropriate measures. This applies especially when there is reason to assume that certain damage or harmful effects on the living resources of the sea are likely to be caused by such substances, even when there is no scientific evidence to prove a causal link between emissions and effects (‘the principle of precautionary action’). In determining whether a set of processes, facilities and methods of operation constitute the best available technology in general or individual cases, special consideration is given to (inter alia) the precautionary principle. If the reduction of emissions resulting from the use of the best available technology does not lead to environmentally acceptable results, additional measures have to be applied.’

The Oslo/Paris Convention from 1994 states the following concerning general obligations in article 2(2):

‘The Contracting Parties shall apply: (a) 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 input and the effects.’

From the Helsinki Convention from 1992 on protection of the Baltic Sea marine environment, article 3(2):

‘The Contracting Parties shall apply the precautionary principle, i.e., to take preventive measures when there is reason to assume that substances or energy introduced, directly or indirectly, into the marine environment may create 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 inputs and their alleged effects.’

At the 12th Meeting of the UNEP supervisory board, a recommendation on global marine environment was agreed on:

‘Recognizing that waiting for scientific proof regarding the impact of pollutants discharges into the marine environment may result in irreversible damage to the marine environment and in human suffering.
Also aware that policies allowing uncontrolled discharges of pollutants continue to pose unknown risks.
1. Recommends that all Governments adopt the ‘principle of precautionary action’ as the basis of their policy with regard to the prevention and elimination of marine pollution.’

From the London Dumping Convention (1991):

‘AGREES that in implementing the London Dumping Convention the Contracting Parties shall be guided by a precautionary approach to environmental protection whereby appropriate preventive measures are taken when there is reason to believe that substances or energy introduced in the marine environment are likely to cause harm even where there is no conclusive evidence to prove a causal relation between inputs and their effects;
AGREES FURTHER that Contracting Parties shall take all necessary steps to ensure the effective implementation of the precautionary approach to environmental protection and to this end they shall:
(a) encourage prevention of pollution at the source, by the application of clean production methods, including raw materials selection, product substitution and clean production technologies and processes and waste minimization throughout society;
(b) evaluate the environmental and economic consequences of alternative methods of waste management, including long-term consequences;
(c) encourage and use as fully as possible scientific and socio-economic research in order to achieve an improved understanding on which to base long-range policy options;
(d) endeavour to reduce risk and scientific uncertainty relating to proposed disposal operations; and
(e) continue to take measures to ensure that potential adverse impacts of any dumping are minimized, and that adequate monitoring is provided for early detection and mitigation of these impacts.’

2.2 Protection of the ozone layer

From the Montreal Protocol preamble (1990):

‘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 and bearing in mind the developmental needs of developing countries.’

2.3 Climate changes

From the UN Framework Convention on climate changes (1992), article 3(3):
‘The Parties should take precautionary measures to anticipate, prevent or minimise the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost effective so as to ensure global benefits at the lowest possible cost.’

2.4 Protection of biological diversity

From the preamble of the 1992 Biological Diversity Convention:

‘Noting that it is vital to anticipate, prevent and attack the causes of significant reduction or loss of biological diversity at source.
Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.’

3. Declarations from industrial and environmental organisations

A series of NGOs have also published their definitions and interpretations of the precautionary principle. Two examples follow: CEFIC and Greenpeace.

3.1 CEFIC

From the CEFIC Position Paper on the precautionary principle and its application, May 1995:

‘No single definition of the Precautionary Principle has prevailed and interpretations vary. However, the general idea could, indicatively, be expressed as follows: where there are sufficient grounds for believing that an activity or product is likely to cause threat of serious and irreversible damage to health and the environment, measures must be taken for example to reduce or to prevent that activity or that products even if there is no fully conclusive evidence of a causal link between that activity or product and the feared consequences.’

The paper states that rational decisions must be made on the basis of a scientific approach. According to CEFIC, the application process regarding the Precautionary Principle should be structured around the following elements: