Precautionary Principle

Precautionary Principle The precautionary principle was arguably developed and originally implemented in Germany and Sweden, and it is these nations that remain the leading proponents of it. For example, it was one of these nations (Germany) that put the precautionary principle on the international stage, and today with regard to environmental regulation (in particular chemicals) it is Sweden that is pushing forward precautionary legislation in the European Union. There is a conflict between those who support the principle and those who oppose it. For example, American policy-makers have become increasingly concerned with the use of the concept by the EU, seeing it as a threat to scientific risk analysis as the main tool for regulation used hitherto. Academics in the United States point out that the US had precautionary elements in their regulations during the 1970s; but these elements turned out to be excessively costly and faulty, and so were abandoned following a Supreme Court judgment in 1980 (in an infamous case concerning benzene) which insisted that regulation must depend on scientific proof of risk. There is no one definition of the precautionary principle. One Swedish author, Per Sandin, lists 19 formulations, often individually vague and mutually contradictory. [1] The most commonly used definition is contained in the 1992 Rio Declaration, which stated that 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. One of the more rigorous analyze of the meanings of the precautionary principle have been put forward in work by Wiener and Rogers. They argue that there are three different formulations of the precautionary principle. These are:[2] †¢ Uncertainty does not justify inaction. In its most basic form, the precautionary principle is a principle that permits regulation in the absence of complete evidence about the particular risk scenario. Lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation-Bergen Declaration]. †¢ Uncertainty justifies action. This version of the precautionary approach is more aggressive. †¢ Uncertainty requires shifting the burden and standard of proof. This version of the precautionary principle is the most aggressive. It holds that uncertain risk requires forbidding the potentially risky activity until the proponent of the activity demonstrates that it poses no (or acceptable) risk. In this part of the report, the precautionary principle is analyzed in the context of the World Trade Organization and with respect to: i) GATT and exceptions in Article XX, ii) the Subsidiary Agreement on Sanitary and Phytosanitary Measures (SPS), and iii) the Agreement on Technical Barriers to Trade (TBT). The precautionary principle is the focus of intense debates in the fields of food safety and GMOs, particularly in the World Trade Organization. 3] Tensions over these issues grew in 1998 after an EC moratorium based on the precautionary principle was applied to GM products from the United States, Canada and Argentina. [4] In 2003, the affected exporting countries requested the establishment of a Dispute Settlement Body by the WTO. [5] World Trade Organization (WTO) The World Trade Organization (WTO) emerged on April 15,1994, predicated on the General Agreement on Tariffs and Trade (GATT) of 1947. [6] The reforms of this organization introduced ‘resolutions’ regardin g the environment. In its preamble, it mentions the ‘objective of sustainable development’ and â€Å"seeking both to protect and preserve the environment†. [7] In 1995, the Committee on Trade and the Environment was created to promote sustainable development and to identify a relationship between trade and the environment. [8] This Committee was created at the behest of the WTO at the end of the Uruguay Round. [9] WTO legislation since then has ad- dressed trade issues that substantially relate to the environment. 10] In spite of the ‘greening’ efforts to integrate the environment and trade, the WTO continues to pursue its objectives â€Å"by entering into reciprocal and mutually advantageous arrangement directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international relations†. [11] WTO agreements that can potentially apply to ‘GMO restrictive measures’ contained in: Ar t. XX of the General Agreement on Tariffs and Trade (GATT) of 1947,[12] The Subsidiary Agreement on Sanitary and Phytosanitary Measures (SPS). 13] A concise application of GATT rules to the GMO controversy will probably not allow stringent regulation of transgenic products such as the one by the European Community and consequently, the WTO will not allow the application of the precautionary principle. Among the measures contained in the GATT agreement that may represent a problem for the application of precautionary measures is the definition of a ‘like product’[14] and the ostensible product regulation the WTO has employed for products. 15] If the WTO decides to take this approach under GATT to GMOs, it will be largely impossible to sustain bans on these products. The precautionary principle as well may not survive scrutiny from the WTO since it would need to show sufficient scientific evidence that health effects derive from the consumption of GM products. Subsidiary Agreement on Sanitary and Phytosanitary Measures (SPS) The SPS agreement was created in 1993, which by WTO parties to help reduce the incidence of non-tariff trade barriers imposed to protect, ostensibly, human, animal or plant life. 16] The WTO describes the focus of the SPS agreement: â€Å"To maintain the sovereign right it deems appropriate, but to ensure that these sovereign rights are not misused for protectionist purposes and do not result in unnecessary barriers to international trade†. [17] The SPS agreement does not provide states with acceptable sanitary standards; instead, it guides governments in establishing SPS rules. These guidelines are aimed at helping WTO members to (1) harmonize standards and (2) to assess the appropriate level of SPS protection based on an assessment of risks. Regarding (1) harmonization, under Art. , it recommends that states base their sanitary measures on international standards, guidelines or recommendations, whenever they exist. (2) With respect to the level of SPS protection, Art. 5 encourages states to base their sanitary standards of risks on scientific evidence. The precautionary principle or at least parts of this principle can be found in various parts of the SPS agreement. [18] Precaution is specifically incorporated in (1) the levels of protection, mentions that states can determine â€Å"the appropriate level of protection of human, animal or plant life or health†. 19] (2) In Art. 3. 3, which is precautionary in nature, the level of protection that can be implemented by states is addressed in the following manner: â€Å"members may introduce or maintain sanitary or Phytosanitary measures which result in a higher level of protection than would be achieved on measures based on the international standards†[20] and (3) Art. 5. 7, states that states can adopt higher standards provisionally â€Å"in cases where relevant scientific evidence is insufficient†. 21] The first case to put to t he test precautionary measures under the SPS was the Beef Hormones Dispute,[22] which was based on an embargo imposed by the European Community against US beef treated with artificial growth-enhancing hormones. This case seems to indicate how the WTO applies the precautionary principle. In this case, the European Community did not look at international standards for selecting the SPS l protection level, namely, in the Codex. According to Art. 3. 3 of this agreement, the EC had a right to increase the level of protection only when the ‘higher protection’ was based on a risk assessment. According to article 5. 7, the EC could have chosen higher standards temporarily until it acquired scientific evidence to support the SPS measures. Accordingly, when countries regulate GMOs, and impose standards more stringent than those found on the international level, they will be required to demonstrate a rational relationship between the regulations and the respective risk assessment. With respect to the precautionary principle, both the WTO panel and the appellate body refused to consider its evolution into a principle of international law. 23] However, they recognized that it was the focus of debate â€Å"among academics, law practitioners, regulators and judges†. [24] The appellate body, though, found that the precautionary principle was ‘reflected’ in the SPS agreement, but did not override the specific obligations in that agreement. [25] Based on the hormones case, the SPS agreement’s version of the precautionary principle relies on a scientifical ly based risk assessment. This standard is not likely to afford protection in cases where scientific evidence has not yet been developed. Nevertheless, countries can impose restrictions based on â€Å"provisional measures† to protect, at least temporarily, human health. The temporary moratorium is still more attractive than any alternative yet devised. Core elements of the precautionary principle have been included in trade agreements, particularly, a) in the SPS agreement, b) in chapter XX of the GATT. Although exceptions in these agreements allude to precaution, the discussion of this principle has been directly addressed under the SPS agreement; particularly, in the Hormone Case. The Appellate Body, in this case, said that the provisions of the SPS Agreement embraced the precautionary principle. [26] This principle, however, has been interpreted as being subordinated to clear and convincing scientific evidence to deal with uncertainties caused by lack of scientific evidence. The WTO, when deciding the case between the US and the EC over the moratorium on transgenic products,[27] is obliged by its own decisions to consider its rules not in isolation but in accordance with international law. 28] The precautionary measures by the EC have to be interpreted in accordance with multilateral environmental agreements. [29] The precautionary principle rests in the hands of the WTO; the way these institutions will interpret this principle will shape the future of protection in the international arena. If the WTO declares illegal the EC moratorium on transgenic products, countries will be reluctant to apply the precautionary principle even when the application of this pr inciple is required by a multilateral environmental agreement such as the Cartagena Protocol. An attack on the precautionary principle by the WTO can result in international conflicts between the trade and environmental regimes. Regional View of Precautionary Principle At the regional level, the precautionary principle has been embraced in different ways. In the European Community (EC), this principle plays a fundamental role in biodiversity and health protection, particularly in the field of GMOs. In North America, this principle does not play as fundamental a role in the North American Free Trade Agreement, but has been tangentially alluded to when GMO issues have been raised. The precautionary principle is particularly essential in the management of risk, which is considered in the EC within a structured approach to the analysis of risk encompassing, such as risk assessment, risk management and risk communication. To apply the precautionary principle, decision makers need to start with a scientific evaluation as comprehensive as possible for the purpose of identifying the degree of uncertainty. [30] Unlike in the European Community, the precautionary principle does not play a central role in the North American Free Trade Agreement (NAFTA). 31] The principle is, nevertheless somehow embraced in this agreement through national legislation. It can be said, however, that the mere creation of the Commission of Environmental Cooperation (CEC) is a precautionary measure to prevent parties from indiscriminately exploiting the environment in the name of trade. While the CEC furthers environmental protection by promoting citizen complaints, its effectiveness is yet to be seen, particularly in the promotion and endorsement of environmental principles such as the precautionary principle. Conclusion In the areas of trade and environmental law, the GMO debate has escalated to the WTO. This organization, when considering the European moratoriums, will definitely shape the application of this principle. If the WTO finds European regulation to be inconsistent with trade agreements, countries will be less willing to apply this principle. At the regional level, while this principle has not been embraced in NAFTA, core elements are contained in national legislation. Although the precautionary principle has been considered in NAFTA by the CEC, this environmental organization is not fully independent and lacks authority to truly promote environmental values such as the precautionary principle. It has also argued that the precautionary principle is not contrary to science but to provide answers with regard to new technologies and in this case, GMOs. With regard to the foundations of this principle, it was argued that it was based on common sense (natural law), and that some of these elements are embodied in the statute of the international court of justice. The precautionary principle departs from anthropocentric attitudes and encompasses a holistic approach. It is not a definite solution and it will not change the world overnight,[32] but it can make a difference in the protection of human health and the environment by providing guidance to policy makers when considering threats posed by GMOs. Bibliography R. Burnett & V. Bath, Law of International Business in Australasia, The Federation Press, 2009. J. Mo, International Commercial Law, LexisNexis Butterworths, 4th edition, 2008. ———————– 1] P Sandin, ‘Dimensions of the precautionary principle' Human and Ecological Risk Assessment, Vol. 5(1999), n. 5, pp. 889-907. [2] JB Wiener and MD Rogers, ‘Comparing precaution in the United States and Europe', forthcoming in Journal of Risk Research, pp. 4-5. [3] Shaw, Sabrina y Schwartz, Risa, â€Å"The Cartagena Protocol and the WTO: Reflections on the Precautionary Principleâ⠂¬ , 10 Swiss Review of International and European Law at 537. [4] Bridgers, supra note 2, at 181 y 182. [5] Isaac, Grant E. y Kerr, William A. , Genetically Modified Organisms at the World Trade Organization: A Harvest of Trouble (2003) 37 J. World Trade at 1083. [6] Macmil l an, Fiona, WTO and the Environment, London, Sweet & Maxwel l , 2001, at 7. [7] See preamble of Marrakech Agreement of the World Trade Organization, Annex 1A, Legal Instruments of the Uruguay Round vol. 1, 33 ILM 1154 (1994). [8] Macmillan, supra note 92 at 12. [9] Ibidem, at 12 y 13. [10] Ibidem, at 12-16. Among the cases the WTO has addressed are: the Tuna-Dolphin cases, The Automobiles case, The Reformulated Gasoline and the Sea Turtle Case. [11] WTO preamble, supra note 93. [12] General Agreement on Tariffs and Trade (GATT), Oct. 30, 1947, 61 Stat. A-11 TIAS 1700 UNTS 194, as modified by Marrakech Agreement of the World Trade Organization, Annex 1A, Legal Instruments of the Uruguay Round vol. 1, 33 ILM 1154 (1994). [13] Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) (15 April 1994), & â€Å"WTO Agreement, Annex 1A, 69†. http://www. wto. org/english/docs_e/legal_e/15-sps. pdf. [14] Art. 2. 6 of the Agreement of Implementation of Art. VI of the GATT 1994 on Antidumping and Countervailing Measures reads as follows: â€Å"Throughout this Agreement the term ‘like product’ (product similarity) shall be interpreted to mean a product which is identical, i. . alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration†. [15] Agreement on Implementation of Article VI of the GATT, 1994. http://www. wto. org/english /docs_e/legal_e/19-adp. pdf. [16] Grosko, Brett, â€Å"Genetic Engineering and Internacional Law: Conflict or Harmony? An analysis of the Biosafety Protocol, GATT, and the WTO Sanitary and Phytosanitary Agreement† (2001) 20 Va. Envtl. L. J. 295 at 308. [17] WTO, â€Å"Understanding the WTO Agreement on Sanitary and Phytosanitary (SPS) Measures†. http://www. wto. org/wto/goods/spsund. htm. [18] Shaw, supra note 88 at 540. [19] SPS agreement, supra note 99, see preamble (1) 6. [20] Ibidem, Article 3. 3. [21] Ibidem, Article 5. 7. [22] EC Measures Concerning Meat & Meat Products, Panel Reports: Case WI/DS26/R/USA, August 18, 1997 & WT/DS48/R/CAN, August 18, 1997; Appellate Body Report: WT/DS26/AB/R&WT/DS48/AB/R, January 16, 1998 in supra note 115. 23] Macmillan, supra note 92 at 153 y 154. [24] Ibidem, at 153 y 154. [25] â€Å"World Trade Organization, summary on the Precautionary Principle,† http://www. wto. org/english/tratop_e/sps_e/sps_agreement_cbt_e/c8s2pl_e. htm. [26] Shaw, supra note 88 at 540. [27] Dispute Settlement Body, Panel WTO: European Communities Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/27, WT/DS292/21 and WT293/21, http://www. wto. org/english/ tratop_e/dispu_e/dispu_subjects_index_e. htm#gmos. 28] Appellate Body Report AB-1996-1,WT/DS2/AB/R at supra note 130. [29] Shaw, supra note 88. [30] Commission of the European Communities, â€Å"Communication of the application of the Precautionary Principle†, (2000). http://europa. eu. int/eur-lex/en/com/cnc/2000/com2000_0001en01. pdf. [31] Raustiala, Kal, â€Å"Precaution in the Federal Legislation of the NAFTA parties†, North America Environmental Law Policy Commission of Environmental Cooperation. http://www. cec. org/files/pdf/lawpolicy/naelp10_en. pdf. [32] Vanderzwaag, supra note 22 at 374 y 375.