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The Precautionary Principle - International Law and Climate Change

Master's Thesis 2006 48 Pages

Environmental Sciences

Excerpt

Table of Contents

Abstract.

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

References

Table of Cases

Table of Treaties and Declarations

Other documents

Interviews/Email Correspondence

LIST OF ACRONYMS

illustration not visible in this excerpt

Acknowledgment:

This thesis would not have come to a conclusion if not for the help of my able supervisor, Karin Bäckstrand, PhD. My deepest gratitude also goes to the LUMES staff and lecturers. Ingegerd Ehn and Asa Grunning have consistently guided us throughout the one and a half years that we stayed in Sweden. My gratitude goes as well to my competent opponent Åsa Mattsson.

I would also like to thank my very lovely and growing family in the Philippines (ang dami niyo eh mga minamahal kong pamilya, alam niyo na kung sino kayo!) for supporting my decision to leave the country for a while to trek a path less travelled by those in my field of law practice. My friends from college, law school, especially Marose, and from my professional circles had been equally supportive. My deepest gratitude goes as well to my boss and mentor, the Honourable Vice President Noli De Castro for his unwavering confidence and trust in me and my potentials. Furthermore, I acknowledge the help of UNEP Executive Director Klaus Töpfer, IPCC Chairman Rajendra K. Pachauri, Mr. Joel Tickner of the University of Massachusetts Lowell, Dr. Rosie Cooney of Flora and Fauna Int’l, and IUCN’s Dr. Jeff McNeely who devoted some time from their busy schedules to assist this study and whose opinion helped shaped this paper.

Lastly, but never the least, I am grateful to my genuinely affectionate family and friends in Sweden. Thanks especially to Veronica, Anders, Fhelipa, Bo and Andrew for their concern and relentless support. And to my classmates, especially Marie Valliant, and my breaktime buddies (Chikoke, Ayna, Erin, Khaled, Melissa, Ritta) our bonds will remain beyond LUMES. I am forever committed to our friendship. Hopefully, we can all be productive agents of sustainability and environmental protection.

Abstract

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

I. Introduction

The phenomenon of global warming is not new to Earth. Major atmospheric changes had happened long before civilization developed. Changes in the earth’s temperature are also not new to human beings. Our ancestors have adapted and survived similar occurrences in the past.[1] In the face of just another climatic episode in earth’s history, why not just ‘wait-and-see’ and continue with our ‘business-as-usual’? Why take precaution when we have yet to put together all the pieces in this jigsaw puzzle to see the entire picture? Why waste energy and resources on matters that could turn out to be not our doing and beyond our control? These postulates and questions sum up the luring challenges posed by climate change sceptics today.

Scientists have confirmed that humans, since the Industrial Revolution, have altered the natural climate system through greenhouse gasses released to the atmosphere by our voracious consumption of fossil fuel, primarily oil. As part of the natural system, humans now play a key role in the balance of nature. And despite remaining uncertainties which are inherent in a complex system, early signs of a changing climate due to anthropogenic influence are beginning to be manifested. As much as we are a part of the natural system, uncertainty is a reality in the climatic system.

The complexity of the climate system and prediction on the impact of climate change stretches science and policy to the limit (Kelly, 2000: 2). In this regard, the Intergovernmental Panel on Climate Change, in its Second Assessment Report (1995) states:

“Climate change presents the decision maker with a set of formidable complications: a considerable number of remaining uncertainties (which are inherent in the complexity of the problem), the potential for irreversible damages or costs, a very long plan.ning horizon, long time lags between emissions and effects, wide regional variation in causes and effects, the irreducibly global scope of the problem, and the need to consider multiple greenhouse gases and aerosols. Yet another compl.ication arises from the fact that effective protection of the climate system requires global cooperation.” (IPCC, 1995: 45; http://www.ipcc.ch/pub/sarsum3.htm)

The precautionary principle[2] is a policy framework that addresses risks in cases involving uncertainty and ignorance, as in the case of climate change. It was originally formulated as a response to the constraints of policy and science in sufficiently addressing complex and uncertain risks and its consequences to human health and the environment (Tickner, 2003: xiii). Although the precautionary principle had a slow start, it eventually found its way in international law. Thus, notwithstanding the criticisms hurled against this principle, global leaders decided to enact numerous international agreements, in particular, the United Nations Framework Convention on Climate Change, which provides for the precautionary principle. The principle meant that if there is a probability of adverse damage, we should not wait until the risk can be scientifically confirmed before taking action to avoid it (Allaby, 1996: 48).

Hence, this paper endeavours to contribute to existing knowledge on precautionary policy under international law and its relation with climate change. Guided by Kelsen’s legal positivism, we shall examine the precautionary principle and its sources in international law. We shall also look at the relation of the Precautionary approach to global warming. We shall delve into the nature of the principle as well as the science and politics of climate change. The aim of this part of the thesis is to advance understanding of the concept of precaution. The second part of the discussion focuses on the standing of the precautionary principle in international customary law. Analysis at this point shall be aided by Article 38(1) of the Statute of the International Court of Justice.

1.1. Scope and Research Objectives

It has been argued that the precautionary principle is consistent with the paradigms of sustainable development, ecological sustainability, and intergenerational equity (Carter, 2001: 207). Although a relatively more recent concept than those enumerated, the concept of precaution has its roots deeply buried in history.[3] According to one scholar, precaution provided the basis for the moral right to avoid harm even in the absence of proof thereof since the early days of civilization (Martin, 1997: 14).

The use of the precautionary principle in curbing major environmental problems today is a highly contentious issue (Morris, 2000: 7; Taylor, 1998: 25; O’Riordan, et. al., 2001: 28). Even its advocates have diverse opinions of its definition and interpretation. For this reason, an examination of the precautionary principle under international law and how it relates with the climate change issue is a relevant case study.

In view thereof, this paper has set out to answer the following questions:

a. What is the relevance of the precautionary principle under the climate change regime?
b. How is the precautionary principle defined under international conventional law?
c. Has the precautionary principle emerged as a binding international custom?

The general aim of this thesis is to better understand the concept of precaution within the international legal system. The particular objectives are to identify its legal role in global climate efforts, to examine its basic formulation as contained in international treaties and declarations, and to determine whether it has emerged as customary international law. To achieve these objectives, Chapter 2 of this paper shall look at the climate change issue and discuss its science, politics, history and development in international law. Chapter 3 shall focus on the precautionary principle by looking at its origin, elements, issues, versions, developments in international environmental law, and analysis of its formulations in international agreements. Chapter 4 is an analysis of the role of precaution within the climate change regime. The penultimate Chapter 5 shall explore the status of the precautionary principle as an international custom.

1.2. Conceptual Framework, Method and Materials

This thesis is influenced by legal positivism theory. According to Shaw (1991: 45), the positivist school declares that law as it exists ought to be analyzed empirically shorn of all ethical considerations. Elements of morality are well and good but have no part in legal science (Kelsen, 1946: 410). Contemporary legal positivism was developed by Hans Kelsen. His legal positivist approach defines law solely in terms of itself and constructs a logical unified structure based on a formal appraisal. In his own words, Kelsen (1946: 396) explains thus, “this means that legal positivism does not go beyond the [basic norm] to produce a material and absolute justification.” Law is regarded as a normative science consisting of norms which lay down patterns of behaviour. Such norms, or rules, depend for their validity on a prior norm and this process continues until one reaches what is termed the basic norm, or grundnorm (Ibid: 395). This basic norm is the foundation of the legal edifice, because rules which can be related back to it therefore become legal rules. According to Kelsen (1966: 402),

“With the aid of the basic norm the legal materials which have been produced as positive law must be comprehensible as a meaningful whole, that is, they must lend themselves to a rational interpretation.”

The basic norm of international law is the rule that identifies custom as the source of law, or particularly stipulates that, ‘the states ought to behave as they customarily behaved’ (Kelsen, 1946: 369). One of the primary customary rules of this is the rule of pacta sund servanda, which he considers a hypothetical grundnorm (ursprungsnorm) , declaring that agreements must be carried out in good faith (Ibid). Upon that rule is founded the second stage within the international legal order which consist of the network of norms created by international treaties and conventions (Ibid). It is the general international law, especially by its rule pacta sund servanda, which establishes the norm which obligates the States to respect their international commitments provided in treaties signed by them. The second stage leads on to the next stage which includes those rules established by organs which have been set up by international treaties, such as decisions of the International Court of Justice (Ibid: 370).

In his 1962 publication, Principles of International Law, Kelsen (1966: 3) postulated that law is a social order and its function is “to bring about certain reciprocal behaviour of men, that is to induce men to refrain from certain acts to which for one reason or another are deemed detrimental to society and to perform others which for one reason or another are regarded as useful to society.” He He Hsuggested that one may induce another to adopt a certain conduct through requests, in the hope that the latter, from respect for the one making the request, will fulfil his request; enlightenment as to the appropriateness of the conduct demanded, in the expectation that the understanding thus acquired will supply the motive for corresponding action or abstention from action; example setting; promise of reward in case of obedience; and by threat of evil from an authority to be forcibly inflicted upon them should they act to the contrary (Ibid: 3-4). Kelsen (1996: 14) acknowledged that a shortcoming of a decentralized system is that if the entity authorized by law to carry out the sanction is not more powerful than the delinquent, any sanction cannot successfully be executed. Thus, under the modern international legal framework, characterized by decentralized force and where use of sanctions, such as war, is permissible only on specific conditions, states are mostly limited to inducement by persuasion in order to achieve individual and collective interests. For this reason, “the establishment of a relatively centralized system of collective security is [important for an effective implementation] of the law”(Kelsen, 1966: 14). Kelsen (1946: 371) proposed the theory of monism which states that international law and national law form one normative system. Gyllenstierna (2003: 28) explains that there are two types of monism, viz,

“According to one type, interna.tional public law is conceived of as being a part of national law, and according to the second type, interna.tional public law is conceived of as being superior to all the national systems. The difference has no practical meaning since according to both models the legal system is conceived of as a coherent system of norms, arranged hierar.chically and the difference only concerns the basis of validity of intern.ational law.”

This paper chose Hans Kelsen to represent the positivist approach to international law since it argues that his theory of legal system provides a tool to understand international law as a system. Kelsen’s positivist approach is concerned “not with the edifice of theory structured upon deductions from absolute principles,” but with viewing incidents as they occurred and discussing actual problems that had arisen (Shaw, 1991: 24). In other words, “what states actually do is the key, not what states ought to do” (Ibid). Customs and agreements acknowledged by states are the essence of international law. An obvious limitation of this approach is the lack of sufficient consideration for the real politik or the practical realities to which the law is just a part of.

This thesis is principally based on an examination of international legal documents and relevant decided cases and literature. Although this study tends to be basically legal, it attempts to be multi-disciplinary, employing principles from systems thinking, environmental studies and sustainability science. Personal interviews were with leadings scientists and experts. They include UNEP Executive Director Klaus Töpfer, Dr. Rajendra K. Pachauri, Chairman of the Intergovernmental Panel on Climate Change, Professor. Joel Tickner, a professor at the Department of Community Health and Sustainability of the University of Massachusetts Lowell, Dr. Jeff MacNeely, Chief Scientist of the IUCN-World Conservation Union, and Rosie Cooney of the Flora and Fauna International. Literature from Lund University libraries, articles from the Lund University’s electronic database (ELIN), legal documents, law journals, and various internet sources (i.e., IPCC, UNGA, ICJ, World Resources Institute) were invaluable research sources for this study.

1.3. Limitations of the Study

This thesis presents the following limitations:

(1) This thesis does not analyze the intricacies of international climate change negotiation leading to existing international law on the subject; statements on the matter are intended for general discussion and better understanding of the background of existing climate treaties.
(2) This paper does not aim to come up with a definitive rule of international law, thus, analysis and conclusions of the author with regard to the status of the precautionary principle in international law should be considered mere argumentation in support of the propositions of this thesis. Certainly, it is not the intention of this paper to solve “the mystery of custom oscillating inconclusively between being a law-creating source of legal rules and mere evidence of pre-existing [international] law.”[4]
(3) This paper is principally a legal research although influence by other disciplines. The author recognizes the sentiments and frustrations of other disciplines as to the current state of international environmental law and its enforcement, including the criticisms against certain treaty provisions relating to the precautionary principle and the implementation the mechanisms to address global warming. Certainly, these aspects are worth analyzing in another paper. However, this paper is limited by its focus and approach of study. Thus, lack of sufficient discussion on these topics should not be interpreted as an intention by the author to diminish the value of the arguments nor as subjectivity towards one side of the debate.
(4) As this paper’s main focus is the precautionary principle under contemporary international law and only uses the climate change problem as a case study insofar as it provides for the precautionary principle in Article 3 of the Convention, this paper will only touch upon the Kyoto Protocol as may be found relevant.

1.4. Literature Review

Most published literature on the topic of the precautionary principle is supportive of it. Per Sandin (2002) of the Royal Institute of Technology in Stockholm upheld the use of the precautionary principle in tackling major environmental issues in his licentiate thesis entitled The Precautionary Principle: from Theory to Practice. He believes that the precautionary principle is a sound doctrine and whatever criticism hurled against it are not without defence or remedy. This sentiment is shared by the European Environmental Agency as expressed in their 2001 publication aptly titled Late Lessons from early warnings: the precautionary principle 1896-2000. David Freestone and Ellen Hey (1996:249) in their book The Precautionary Principle and International Law also expressed support for the principle and even went to the point of saying that “the precautionary principle is here to stay.”

Joel Tickner’s (2003) Precaution: Environmental Science and Preventive Pubic Policy is also for precautionary policies in cases involving uncertainty and complexity. The book focuses on how environmental science, in the face of uncertain and dynamic environmental risks, can assist precautionary actions (Ibid: xvi). Reinterpreting the Precautionary Principle, edited by Tim O’Riordan, Andrew Jordan and James Cameron (2002) provides an objective and holistic examination of the precautionary principle. It looks at the concept of precaution from the perspective of science and technology, international law and national applications.

Julian Morris’ (2000) Rethinking Risk and the Precautionary Principle presents a critical view of the concept of precaution. It denounces the principle for its vagueness and tendency towards arbitrariness and criticized the weakness of current accepted versions in international agreements. The book then proceeds to assess specific applications of the precautionary principle. The basic argument of the book is that the precautionary principle is a counterproductive method in assessing risks. Inspired by his earlier contribution to Morris’ (2000) book, Indur Goklany (2001) published The Precautionary Principle: A Critical Appraisal of Environmental Risk Assessment. As made clear in his title, Goklany (2001: 1) poetically likened past and present precautionary measures to “escaping goblins, only to be captured by wolves.” This book presents a critical analysis of the precautionary principle through historical incidents as case studies.

On the matter of climate change, Sharon Spray and Karen McGlothlin’s (2002) edited book Global Climate Change provides a strong argument for forward-looking measures to combat climate change. Although they acknowledged the uncertainty, Spray and McGlothlin (2002: 146) argues that “the science of climate change is strong” and we cannot afford inaction because “the stakes are high” (Ibid). Materials for the negotiations leading to the Kyoto Protocol were provides by Luterbacher and Sprinz (2001).

On the other hand, legal scholars are still in a quandary over whether the precautionary principle has reached the status of a binding international custom. On one side are the advocates of precaution as a general principle of law. Sands (2003: 279) in particular states that:

“The legal status of the precautionary principle is evolving. There is certainly sufficient evidence of state practice to support the conclusion that the principle, as elaborated in the Rio Declaration and various interna.tional conventions, has now received sufficiently broad support to allow a strong argument to be made that it reflects a principle of customary law.”

Cameron (2002) echoed the aforequoted pronouncement of Sands and declared that the legal prerequisites of “state practice” and opinion juris for the formation of international customary law are present in the case of the precautionary principle (O’Riordan, et. al., 2002: 123; Freestone and Hey, 1996: 52). On the other side of the debate are legal scholars refusing to admit the precautionary principle among the roster of international customs. Birnie and Boyle (1992), for instance, denied that the precautionary principle is an international custom and noted the diverse interpretations and vagueness in its applicability (1992: 83). Susskind (1994: 79) also expressly declared that the “precautionary principle is not yet a part of customary international law.”

Concerning the theoretical literatures, the works of Hans Kelsen, particularly, General Theory of Law and the State (1946) and Principles of International Law (1966) had been invaluable sources of information. In his 1946 publication, Kelsen presents the essential elements of the ‘pure theory of law’ as a general theory of positive law. On the other hand, in Principles of International Law, Kelsen (1966) examined the nature and fundamental concepts of international law and analyzed its structure and the determination of its position in the contemporary world order.

II. Climate Change: The reality of a warming planet

“An increasing body of observations gives a col . lective picture of a warming world and other changes in the climate sys . tem.”

IPCC (2001:1)

2.1. Introduction

The signs are everywhere: rapid disappearance of glaciers in areas outside the polar region, erratic winter in some areas of the Northern Hemisphere, extreme weather occurrences in the Americas (i.e., Hurricanes Katrina, and Wilma, among others, bringing massive destruction in land areas surrounding the Gulf of Mexico), increased incidence of droughts in Asia and Africa, heat waves and skin diseases in Europe and Australasia. These are not conclusive evidence of a global climate shift but they provide warnings of a change in the climate system. Considering the major changes since the birth of civilization, directly or indirectly attributable to humans—population explosion, technological and scientific advancement in almost all fields thinkable allowing us to exploit the Earth better, massive clearance of the Earth’s forest cover, declining level of biodiversity, ecosystem destruction, air pollution— it does not take a rocket scientist to figure out that humans, being a part thereof, had already affected the natural climate system.

The progress of civilization was at the expense of the natural environment. Since the Industrial Revolution, humans have become more and more dependent on fossil fuel- starting with coal and then with oil. The resulting advancement in technology and industry generally raised the quality of life and made human propagation more efficient as well. As human population grows, the collective needs for food, clothing, shelter and other necessities shoots up exponentially as well. Trees and forests, which took the Earth millions of years to form, were rapidly cleared for human settlements, energy, industrial material, mining, and recreation. This pattern of exploitation of nature to serve human needs and wants is best characterized by Garret Hardin’s, Tragedy of the Commons (Hardin 1968).

2.2. The Tragedy of the Global Commons

The 1968 article by Hardin provides a monumental formulation of how human nature and economic activities led to environmental problems. He used the example of a grazing village where economic benefits are reaped by the farmer who overexploits the common pasture land better, but the long-term costs to the environment and eventually to everyone in the village are shared by all. Thus, he concluded that rational economic behaviour by one person deteriorates into collective misery of the entire community. In contemporary global setting, G. Tyler Miller (1998: 10) blames the ‘exponential growth’ in human population, the burning of fossil fuel, and consumption of the Earth’s resources, as well as each State’s quest for economic growth for damaging the foundations of Earth’s capital. One effect of humans’ exploitation of the Earth is the diminishing supplies of vital resources, which according to Klare (2001: 21), led to increasing global conflict.

Hardin’s Tragedy of the Commons applies to the current global problem of climate change. Since the atmosphere is free for all to use and exploit, polluting it to achieve individual and collective ends of prosperity and economic growth continues to be considered by many as acceptable and tolerable. After humans discovered that there are anthropocentric benefits from common forests (i.e., coal, minerals, and raw materials), its defacement became rampant. Now, the natural system is altered, greenhouse gases (GHGs) in the atmosphere from human activities had reached a critical level and there is very little carbon sink from forest cover left. Again, as Hardin pointed out, what humans once considered rational behaviour has led to collective suffering.

The Intergovernmental Panel on Climate Change (IPCC) stated in its 2001 Third Assessment Report (2001: 2) that “the global average surface temperature has increased since 1861” and “over the 20th century the increase has been 0.6± 0.2 degrees centigrade” (See Figure 2). This global warming trend, as a result of climate change, is perhaps the first global environmental issue affecting everyone on the planet, and because of the longevity of greenhouse gases and the inertia of the world’s climate systems, the effects could span centuries (Woodward, 2003: 127). A problem so extensive and associated with such a long timescale brings with it enormous scientific and socio-economic uncertainties, and to a large extent, policy decisions depend on how these uncertainties are handled (Elliot: 2004: 79). This phenomenon is also one of the key areas in which scientific observations and analyses could have a profound impact on how people everywhere live their lives (Dobson, 2002: 3).

2.3. The Science of Climate Change

The basic premise of the climate change issue concerns the ‘greenhouse effect’. It is a natural phenomena whereby greenhouse gases [carbon dioxide (CO2), nitrous oxide (N2O), halocarbons and methane (CH4), among others] raises the temperature of the Earth’s lower troposphere and surface by absorbing some infrared radiation from the Earth’s surface (Miller, 1998: 18). As explained by Miller, this process causes molecules of GHGs “to vibrate and transform the absorbed energy into longer-wave infrared radiation” in the troposphere (Ibid). To explain this process further, we can use the example of a typical car parked in a lot under the sun. Sunlight passes through the glass windows and ceiling of a car and strikes every object inside it. Some of the light is reflected and it goes back out through the glass. Some of the light is absorbed and this causes heating of whatever object absorbed it. The heated objects give off energy through infrared light which cannot fully penetrate the glass. Thus, infrared light, or heat, is trapped in the car, and the car heats up (Spray and McGlothlin, 2002: 6). Similarly, in the natural world, sunlight passes through the Earth’s atmosphere and strikes the Earth’s surface. Some of the sunlight is reflected into space while some is absorbed. The absorbed light warms up the Earth’s surface and the earth gives off infrared radiation which is absorbed by the atmosphere.

The Earth’s atmosphere consists of 78% nitrogen and 21% oxygen (Ibid: 7). Neither gas absorbs infrared radiation. An important component of the atmosphere for global heat balance is carbon dioxide which makes up .5% thereof. CO2, as well as other GHGs absorb infrared radiation. Without the natural greenhouse effect scientists estimate that the average global temperature would be about 33 degrees centigrade lower (Carter, 2001: 232). However, since the Industrial Revolution, human activities have caused greater concentrations of GHGs in the atmosphere through emissions, mostly from fossil fuel burning. Thus, the resulting changes in composition of the Earth’s atmosphere due to human activities now dominate changes that occur naturally (MacDonald, 1990: 1).

2.4. Historical Development

“Considering the whole span of earthly time….in which life actually modified its surroundings has been relatively slight. Only within the moment of time represented by the present century has one species- man- acquired significant power to alter the nature of his world.”

Rachel Carson (1962: 23)

2.4.1. Consensus Building

The international legal instruments addressing the global climate change are recent but scientific and academic discussions of this phenomenon started way earlier. Climate change started to intrigue the scientific community in the early 1960s after the formulation of the Keeling curve which demonstrated the increasing concentration of GHGs in the atmosphere (Luterbacher and Sprinz, 2001: 24). The problem of environmental degradation was first addressed by the international community in 1972 at the Stockholm Conference on the Human Environment. However, global climate change was only touched upon because the world was still clueless at that time about the extent of the problem.[5] General climate issues were addressed at a series of scientific conferences in the 1970s and early 1980s, including the UN Water Conference in 1976, the UN World Food Conference and the UN Desertification Conference in 1977.

In 1979, The World Meteorological Organization (WMO) convened the First World Climate Conference which called for an urgent action “to foresee and to prevent potential man-made changes in climate that might be adverse to the well-being of humanity” (UNEP, www.cs.ntu.edu.au). It was not until the 1985 International Conference on Assessment of the Role of CO2 and other GHGs in Climate Variation and Associated Impact, sponsored by WMO and UNEP, that rising scientific apprehension began to translate into demands for political action. The 1987 Brundtland Commission Report, Our Common Future, published by the World Commission on Environment and Development, paid considerable attention to the risks associated with anthropogenic climate change and also highlighted the importance of the precautionary principle (WCED, 1987). Henceforth, climate change hit the limelight in the international political agenda. Paterson (1996: 60) suggests that the reasons for this are: First, the developing scientific consensus that warming was likely if current trends in global emissions of the anthropogenic GHGs continue; second, the 1980s showed an upsurge of international discussions and debates on a number of global environmental issues [i.e., depletion of the ozone layer due to chlorofluorocarbons (CFCs), transboundary air pollution and acidification, deforestation of the tropics]; and finally, there was a series of extreme weather occurrences, of which the most important politically were the US drought in 1988 and the empirical observation that the 1980s provided the six hottest years on record. These three main factors combined to make claims by scientists about climate change increasingly plausible both to the general public and their governments.

This call for political action by some sectors of the scientific community was initially answered under UN Resolution 43/53 on the Protection of Global Climate for Present and Future Generations of Mankind (1988).

2.4.2. Consolidation of Expert Knowledge

UN Resolution 43/53 established an Intergovernmental Panel on Climate Change (IPCC). Despite the presence of existing mechanisms to monitor and oversee the state of scientific knowledge of GHG and climate science under the World Climate Research Programme (WCRP), the Congress of the WMO adopted a declaration calling for the creation of an independent, more broadly representative body to provide authoritative scientific advice to UN members (UN-NGLS, 1997: 2). Having in mind its success with the ozone depletion case but mindful of the enormous tasks involved in climate change concerning matters that go beyond science to matters of social, economic and environmental fields, the IPCC was established to “(i) assess available scientific information on climate change, (ii) assess the environmental and socio-economic impacts of climate change, and (iii) formulate response strategies” ( IPCC, 1995: v). The IPCC’s 1990 First Assessment Report, a scientific assessment of global warming, which stated that given the current trend of increasing GHG emission interference with the climate system is likely, swayed decision makers to agree to an international framework convention (Bodansky, 2001: 28). Subsequently, IPCC published its Second Assessment Report in 1995, which contributed to the drafting of the Kyoto Protocol, and in 2001, it released its Third Assessment Report which contained its latest findings on the science of climate change.

2.4.3. The Road to New York

In response to the Brundtland Report, the Toronto Conference of experts, was held in 1988 which set a global carbon dioxide emissions target (Toronto Target) of 20% before 2005 (Elliot, 2001: 81). This was the first definitive proposal for emissions reduction that inspired later climate change policies. The Conference also recommended the enactment of an international convention with appropriate protocols to ensure rapid international action to protect the atmosphere and limit the rate of climate change.[6] The 1988 Toronto Conference interestingly noted that there has been an “observed increase of globally-averaged temperature of 0.7°C in the past century” and also predicted that “climate change will continue so long as the greenhouse gasses accumulate in the atmosphere.”[7] This was followed in 1989 at the Hague Conference where countries called for “regulatory, supportive and adjustment measures that take into account the participation and potential contribution of countries which have reached different levels of development” (Declaration of the Hague, para. 7, 1989) . In 1990, the UN Economic Commission for Europe (UNECE) and the government of Norway convened the Bergen Conference on Sustainable Development. The product of the conference of 34 environment ministers and the European Commission was a Declaration that contained concrete measures to combat climate change (UN-NGLS, 1997, 2). In the same year, UNEP and WMO sponsored the Second World Climate Change Conference (SWCC) which reviewed the UNEP/WMO World Climate Programme and recommended policy actions (Ibid). More importantly, the SWCC ended with a call for a framework convention on climate change (Ibid).

2.5. Establishment of a Global Climate Regime

On 21 December 1990, the UN General Assembly, through its Resolution No. 45/122 entitled Protection of global climate for present and future generations of mankind,[8] created the Intergovernmental Negotiating Committee (INC) to prepare a draft convention on climate change. The INC held five negotiating sessions between February 1991 and May 1992. On 9 May 1992, the INC negotiators adopted the Framework Convention on Climate Change (FCCC) and it was opened for signature at the United Nations Conference on Environment and Development (UNCED). Initially, the convention was signed by 154 states and the European Union (EU), demonstrating wide acceptance of the INC text (Ibid, 3). Additional signatures were had by the time the convention closed on 19 June 1993, bringing the numbers to 165 states and the EU (Ibid). The convention entered into force on 24 March 1994. Parties hence became legally bound by the terms of the treaty.

The convention’s objective is to stabilize atmospheric GHG concentrations at levels that will prevent human activities from interfering dangerously with the global climate system (UNFCCC, Article 2). Although the UNFCCC does not contain any binding targets on the part of states, it provides for general commitments to stabilize atmospheric concentration of GHGs by limiting emissions, enhancing sinks and protecting reservoirs (UNFCCC, Article 3.1). Because the INC decided for a framework convention in order to achieve a broader consensus, Article 24 does not allow reservations to the convention. Therefore, all state-parties are bound by similar provisions unless they decided to withdraw at any time three years after it entered into force.

The decision to frame a protocol to the UNFCCC was reached at the first Conference of Parties (COP1) meeting held at Berlin in 1995 (UN-NGLS, 1997: 5). Other issues were discussed including: procedures for national reporting, methodology and standards for assessment, and joint implementation programs (Ibid). The inability of the first COP to resolve a number of issues led members to call for the creation of an Ad hoc Group on the Berlin Mandate (AGBM) to address issues of commitment beyond 2000 (Ibid). However, AGBM meetings were muddled with debates and politicking. Countries were divided according to their views on how to curb GHG, namely, EU group, US-led group, developing countries, oil-producing countries, and the Association of Small Island States (AOSIS). EU’s proposed protocol contained specific targets while the US wanted average and cumulative emissions objectives (Hsu, 2004: 31).

IPCC’s Second Assessment Report, which came out in December 1995 was endorsed at the second COP meeting (COP2) in Geneva, Switzerland. It was during COP2 that the EU and US agreed for a significant reduction in GHG emissions under a separate binding instrument (ENB, 1996: 13). Finally, on 11 December 1997, during the third COP meeting (COP3) at Kyoto, after much debate over targets, mechanisms and coverage, members adopted the Protocol to the United Nations Framework Convention on Climate Change(Bodansky, 2001: 35) . This agreement covers six greenhouse gases (Kyoto Protocol, Annex A) and includes a group of options for reductions in emissions. These include energy efficiency to reduce GHG emissions from fossil fuel, sequestering GHGs by establishing or enhancing sinks, and bubble arrangements which would allow countries to meet their obligations jointly (Kyoto Protocol, Articles 2, 3, 4).

To achieve the objective set out by the convention,[9] parties are to be guided, among others, by the precautionary principle, viz:

“The parties should take precautionary m.easures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific research should not be used as a reason for post.poning such measures, taking into account the policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost” (UNFCCC, Article 3§3).

The nature, definition and framework of the precautionary principle are explained in the succeeding chapter.

III. The Precautionary Principle

3.1. Introduction

Article 3 of the UNFCCC was just one in a long list of international agreements that contained the precautionary principle, making it one of the more popular legal concepts in international environmental law today. Whereas traditional regulatory practices are reactive, precautionary measures are preventive and pre-emptive (Myhr and Traavik, 2001: 76). In its simplest form, the precautionary principle provides that if there is risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection.

3.2. The Origin of the Precautionary Principle

In his address to the Parliamentary Earth Summit of the UN Conference on Environment and Development, the Dalai Lama of Tibet noted that “in the seventeenth century, [Tibetan leadership] began enacting decrees to protect the environment and so we may have been one of the first nations to [enforce] environmental regulations!”[10] The Theravada scriptures of Buddhism provide the earliest written sources which could accommodate the concept of precaution (Martin, 1997: 276). Theravada teaches not to commit harm, the Buddha urging his followers to refrain from ‘unwholesome action’ and monks prohibited from ‘injuring plants and seeds’ (Ibid).

Undeniably, the origin of the concept of precaution may well be found in the history of civilization. In the early stage of civilization, humans had a holistic attitude towards nature which was regarded with sacred veneration. Nature was revered as the provider of life and therefore exploitation of its generosity was considered unethical. Subsequently, nature’s mystery was unravelled by the teachings of monotheistic religions and corresponding developments in science. This elevated the status of humans above the environment. The regard to human life became primordial and gave humans the right to exploit nature without ethical limitation. The struggle to survive and protect human health led to the early use of the concept of precaution.

3.3. Historical Development

Martin (1997: 264) suggests that the earliest formulation of the precautionary principle in contemporary public policy can be traced in the early 1950s under the guise of what was then called “safe minimum standard of conservation.” Major environmental issues of the 1960s-- the case of DDT (dichlorodiphenyltrichloroethane) -- led environmentalists and policy makers to rethink their approach to specifically address uncertainties. This paved the way in the 1970s for the establishment of the precautionary principle as a reaction to “the limitations of public policies based on a notion of ‘assimilative capacity,’ i.e. that humans and the environment can tolerate a certain amount of contamination or disturbance, and that this amount can be calculated and controlled” (Barrett and Tickner, 2001: 1).

In the mid-1970s, West Germany’s legislature enacted a national environmental policy which provided for precautionary approach to environmental protection (Morris, 2000: 1). The German concept of "Vorsorgeprinzip" (translated as principle of foresight) prescribes society to engage in careful study and planning to avoid environmental and health damage from potentially harmful activities (Barrett and Tickner, 2001: 1). The 1970s also showed the emergence of the principle in the United States. Although the term is not used, the essence of the precautionary principle can be found in several laws such as the U.S. Federal Food, Drug and Cosmetic Act of 1958 (Section 409), which outlawed any food additive that was found to induce cancer regardless of the magnitude of the dose, and the 1970 Clean Air Act which established the National Ambient Air Quality Standards (Goklany, 2001: 4).

The precautionary concept found its way into international law and policy as a result of proposals from environmentalists and European governments. The 1982 United Nations World Charter for Nature provided that when “potential adverse effects [of an activity] are not fully understood, [it] should not proceed” (Ibid: 4). In 1987, owing to German proposals, the precautionary principle appeared in the Second International Conference on the Protection of the North Sea (Ibid: 4; Freestone and Hey, 1996: 49).[11] The London accord states:

“Accepting that in order to protect the North Sea from possibly 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 scie.ntific evidence” (Second North Sea Conference, 1987).

Notably, the aforequoted provision marked the first time that the precautionary principle becomes part of an international agreement (Morris, 2000: 3). Since then, the precautionary principle has been integrated into subsequent international agreements, becoming a recognized principle of international environmental law.

From the North Sea ministerial forum, the concept of precaution was integrated into the global marine environmental regimes, into global environmental regimes, and into the negotiations for a global fisheries regime for straddling and highly migratory stocks.[12] In the Declaration of the Third International Conference on the Protection of the North Sea,[13] the principle was adopted as a key premise for subsequent work.[14] During negotiations of the Oslo and Paris (OSPAR) commissions, the precautionary concept found its way beyond the North Sea, to include the North-East Atlantic. Not only did the OSPAR commissions reiterate the principle, instruments were established for implementation of the precautionary policies,”[15] viz: “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 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 the causal relationship between inputs and the effe.cts” [Art. 2(2)(a)].

On 25 March 1985, the Convention for the Protection of the Ozone Layer (Vienna Convention) was adopted by 20 countries and the European Commission (Elliot, 2004: 74). Cameron (2001: 114) noted that the Vienna Convention is the “first [multilateral] treaty to make explicit reference to precaution”. As there was still no scientific certainty on the causes and impacts of ozone depletion at the time of adoption, the Convention’s later success was due largely to its precautionary nature (Ibid). In 1987, the Protocol to the Vienna Convention was adopted in Montreal. It states in part that “Parties…..determined to protect the ozone layer by taking precautionary measures to control equitable total global emissions of substances that deplete it…” (Montreal Protocol, Preamble, 1987).

Also at the multilateral level, both the Governing Council of the United Nations Environmental Program and the Meeting of Contracting Parties to the Convention on the Prevention of Pollution by Dumping of Wastes and Other Matter[16] applied the concept of precaution in relation to marine pollution and ocean dumping, respectively. During the Earth Summit at Rio de Janeiro, Brazil in 1992, the community of nations represented therein came up with the Agenda 21. Chapter 17 thereof refers to the precautionary concept, viz:

“A precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine environment. This requires, inter alia, the adoption of precautionary measures, environmental impact assessments, clean production techniques, recycling, wastes audits and minimization, construction and/or improvement of sewage treatment facilities, quality management criteria for handling of hazardous substances, and a comprehensive approach to damaging impact from air, land and water” (Agenda 21, Chap. 17).

This paragraph is not only a manifest endorsement of the precautionary principle, but it also clearly relates the precautionary concept to a number of specific measures which would enhance precautionary policies with respect to oceans, seas and the marine environment. In relation to the protection of marine environment, the application of the precautionary principle to the management of marine living resources in the 1982 decision of the International Whaling Commission (IWC) is most notable. IWC, in effect, implemented the precautionary principle when it imposes a de facto moratorium on commercial whaling . [17] Henceforth, the precautionary principle was endorsed in other regional forums concerned with the protection and preservation of the marine environment as one of the principles on which to base their policies. Notable examples of regions in which the precautionary concept has been explicitly endorsed are: the North-East Atlantic,[18] the Baltic Sea,[19] the Black Sea,[20] and the Wider Caribbean Region.[21]

Significantly, the adoption of the Rio Declaration at the United Nations Conference on Environment and Development (UNCED) in 1992 signified that “the precautionary concept has become essential to international environmental policy” (Freestone, 1994: 195). Principle 15 of the Rio Declaration provides hence:

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabil.ities. 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.” (Rio Declaration, 1992)

Along with the Rio Declaration, the Convention on Biological Diversity, (CBD) which also provided for precautionary concept, was adopted in 1992 during the Earth Summit. Subsequently, the Protocol to the CBD was adopted in Montreal in 2000 and its Article 1 states clearly that it must be pursued in accordance with the precautionary approach as stated in the Declaration (Elliot, 2004: 42). The Convention on International Trade in Endangered Species (CITES) came into force in 1975. The CITES Guidelines adopted in 1994 provided for a precautionary approach in determining whether species are threatened with extinction or are likely to withstand pressures of trade (Ibid: 33).

[...]


[1] According to Alfsen and Skodvin (1998: 15), “there is increasi . ng evidence that not only during cold periods with extended glaciation, but also in the previous warmer inter-glacial periods, the climate was characterise . d by large variability on a short (decadal) time scale.”

[2] For the purpose of this thesis, the following terms are used interchangeably and are intended to refer to the Precautionary Principle: precaution, precautionary action, precautionary measures, precautionary approach.

[3] Philippe Martin (1997: 276-278) suggests that the unambiguous referral to the precautionary principle is found in the Theravadan scriptures of Buddhism and the millennial oral traditions of indigenous peoples of Africa, Australia, Americas and Eurasia.

[4] Lauterpacht, H. (1958: 379), The Development of International Law by the International Court of Justice (1958: 379), as quoted by Slouka (1968: 1).

[5] See Recommendation 70 of the Stockholm Action Plan.

[6] Ottawa Agreed Principles for Protection of the Atmosphere, 1989.

[7] Toronto Conference Statement: The Changing Atmosphere—Implications for Global Security, 1988.

[8] UNGA Res. 45/122.

[9] Adopted by the Kyoto Protocol (1997) in its Preamble by reference to Article 3 of UNFCCC.

[10] Address of His Holiness the XIV Dalai Lama on 7 June 1992 to the Parliamentary Earth Summit (Global Forum) of the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil (Environment and Development Desk, 2004: 26).

[11] The participants declared that they accepted that: “in order to protect the North Sea from possibly 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 absolute clear scientific evidence” [Paragraph VII, London Declaration, 25 November 1987].

[12] Article 6 and Annex 2 of the Draft Agreement on Straddling and Highly Migratory Fish Stocks; the Agreement incorporates both the precautionary principle and the ecosystem approach as basis for conservation and management policies [Elliot, 2004: 45].

[13] Hague Declaration

[14] The participants declared that they “will continue to apply the precautionary principle that is to take action to avoid potentially damaging impacts of substances that are persistent, toxic and likely to bioaccumulate even where there is no scientific evidence to prove a causal link between emissions and effect. [Preamble, The Hague Declaration, 8 March 1990].

[15] Among these are the requirement that best available technology be applied to land-based sources of pollution [PARCOM Recommendation 89/2, 22 June 1989 on the use of the Best Available Technology, The Hague declaration, 8 March 1990], and that any dumping of industrial waste during the interim period be subject to the so-called “prior justification procedure [OSCOM Decision 98/1, 14 June 1989, Ibid, p. 119].

[16] London, 13 November 1972, (1972) 11 ILM 1291.

[17] The Commission amended the Schedule under Article V of the Convention so that “catch limits for the killing of commercial purposes of whales from all stocks for the 1986 coastal and 1985/6 pelagic seasons and thereafter shall be zero.”

[18] Article 2(2)(a), The 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic.

[19] Article 3(2), Baltic Sea Convention.

[20] First Declaratory Paragraph of the Black Sea Declaration.

[21] See Relevance and Application of the Principle of the Precautionary Action to the Caribbean Environment Programmed. Secretariat paper approved by the CEP Meeting of Experts and the Third Meeting of the Parties to the Cartagena Convention, November 1992, UN OCA/CAR WG.10/INF.4.

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Pages
48
Year
2006
ISBN (eBook)
9783656083979
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9783656083900
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788 KB
Language
English
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v183852
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Lund University – LUMES
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precautionary principle international climate change

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Title: The Precautionary Principle - International Law and Climate Change