The Precautionary Principle in International Law. J. Applegate, Indiana University School of Law-Bloomington
The Precautionary Principle is regularly characterized by both its friends and its enemies as a fundamental shift in the management of environmental risk, one which would have dramatic regulatory effects if implemented. A careful examination of the Precautionary Principle as actually adopted in international legal instruments shows instead that it represents a distinctive but nuanced and in many ways familiar approach to environmental risk. In particular, as the recent European Commission Communication on the Precautionary Principle and the Cartagena Protocol on Biosafety suggest, it is not (or need not be) the antithesis of science or of risk assessment. It is, in essence, a timing rule. With respect to new and potentially harmful technologies, it adopts a risk-averse baseline and maintains flexibility in responding to their potential for harm. Specifically, it authorizes preventive action in advance of the development of full or conclusive scientific evidence relating to the harms, but it anticipates an iterative process for thorough development of risk and benefit information. The Precautionary Principle does not exclude consideration of benefits, nor is it absolute - indeed, most versions are silent - as to the degree of certainty required or acceptable levels of risk. Rather, the Precautionary Principle anticipates proportionate, albeit cautious, responses in both initial restrictions and those imposed after a more complete investigation.
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