The precautionary principle in international law: lessons from Fuller's internal morality.

• Author: Ellis, Jaye
• Position: Lon Fuller

Introduction I. The Precautionary Principle: An Attempt at Definition and Description II. Lon Fuller's Internal Morality of Law and the Precautionary Principle A. Generality B. Promulgation C. Retroactivity D. Clarity E. Contradictions in the Law F. Laws Requiring the Impossible G. Constancy of the Law Through Time H. Congruence Between Official Action and Declared Rules III. Implications for Process IV. Excursus: The Beef Hormones Case--Operationalization of the Precautionary Principle Conclusion: Anatomy of a Precautionary Legal Process In contrast to the assimilative capacity approach, the precautionary principle in international law points to the limitations of the scientific understanding of complex phenomena. Under this principle, possible uncertainty about a cause-effect linkage between an activity and harm must not be a reason to postpone taking measures to protect the environment when risks of harm exist. The point at which the risks become unacceptable and whether the minimization of these risks is justified from an economic and social standpoint become questions of policy.

The authors analyze the precautionary principle through the lens of Lon Fuller's concept of the internal morality of law and suggest that even though some decisions made under the precautionary principle may offend law's internal morality, the principle cannot be said to be in conflict with it. Nothing inherent in the principle, or the decision-making processes under it, offends any of Fuller's eight precepts of internal morality--provided that decision makers carefully balance relevant considerations. By way of example, the article then demonstrates the central role that the precautionary principle played in the European Union's decision to ban the imports of hormone-treated beef.

The authors conclude that the benefits and pitfalls of the precautionary principle can only be seen by analyzing specific processes through which political choices are made under the principle, rather than by looking at the principle in the abstract.

Par opposition a l'approche dire de >, le principe de precaution en droit international revele his limites d'une comprehension scientifique de phenomenes complexes. D'apres ce principe, la possible incertitude quant a l'existence d'un lien de causalite entre une activite et un prejudice ne saurait justifier le report de mesures de protection de l'environnement lorsque existent des risques de prejudice. Savoir a quel point ces risques deviennent inacceptables et dans quelle mesure la reduction de ces risques est justifiee d'un point de vue economique et social deviennent alors des questions de politique publique.

Les auteurs analysent le principe de precaution sous l'angle du concept de > developpe par Lon Fuller. Ils suggerent que meme si certaines decisions prises sous le principe de precaution peuvent contrevenir a la moralite interne du droit, le principe luimeme ne lui est pas oppose. Rien d'inherent au principe ou aux methodes de prise de decision developpees soils son autorite n'enfreint l'un des huit preceptes de la moralite interne du droit edictes par Fuller--dans la mesure ou les decideurs soupesent avec soin les facteurs pertinents. A titre d'exemple, l'article examine le role central du principe de precaution dans la decision de l'Union Europeenne de bannir les importations de viande de boeuf traite aux hormones.

En conclusion, les auteurs affirment que les benefices et inconvenients du principe de precaution ne sauraient etre consideres que dans le contexte d'une analyse des processus particuliers ou des choix politiques sont faits sous son egide, plutot qu'au terme d'un examen abstrait.

Introduction

The precautionary principle, conceived of as an approach to decision-making regarding toxic or hazardous chemicals in conditions of uncertainty about the impact of these substances once released into the environment, (1) has itself become a source of a good deal of uncertainty. Debates are continuing about its status in various legal systems; its meaning, both in general and in particular contexts; and its implications for commerce, industry, trade, health, agriculture, and--with only slight exaggeration--virtually every area of human endeavour. (2)

Like all good and useful principles that are pitched at a high level of generality--some others include reasonableness, good faith, best interests of the child, and state sovereignty--the precautionary principle has its benefits and pitfalls, but these cannot readily be understood in the abstract. The principle's capacity both for good and evil can become truly apparent only when it is invoked, discussed, criticized, and--in some form or another--applied or avoided in a particular context. Furthermore, contributions of the principle to the resolution of disputes and problems depend much more on the processes in which it is taken up than on its inherent features.

In what follows, we seek to contribute to the ongoing debates by addressing precaution as a principle of international environmental law and by generalizing about the ways in which it is deployed. We will present a critique and defence of the principle, with the aid of Lon Fuller's conception of the internal morality of law. Fuller's approach helps us to understand better how the principle can be invoked in a manner that promotes environmental and human health goals while at the same time respecting the integrity of the legal system. We will then conclude with a discussion of the implications of the principle for process in international law.

1. The Precautionary Principle: An Attempt at Definition and Description

   We shall begin with a brief account of what the principle does not do. It does not tell decision-makers or individual actors what to do or when; it does not reverse the burden of proof, requiring the proponents of a particular activity to prove that it is free of risks; and it does not place environmental concerns ahead of social and economic ones. What it does do is propose a course of action to be followed in instances where the impact of a given substance or activity on human health or the environment gives rise to questions or concerns, but where the cause-effect linkage between the substance or activity and harm cannot be identified with certainty. Belief in the existence of a possible cause-effect linkage may be based on theoretical knowledge--for example, on scientific knowledge of the properties of the substance in question or substances with similar qualities. It may also be based on a limited data set that gives rise to suspicions and questions but no firm conclusions. Or it may be the result of the limitations of scientific understanding of complex phenomena and interrelationships.

   There is no single accepted definition of the precautionary principle. The version found at Principle 15 of the Rio Declaration is the best known. It states:

   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. (3) This version contains two elements that are not ubiquitous features of definitions of precaution and that are controversial: the reference to serious or irreversible damage as a trigger for application of precaution and the reference to the cost-effectiveness of measures taken pursuant to the principle. The common elements of various expressions of the principle--a baseline version--might be captured as follows:

   Where threats of harm to the environment exist, scientific uncertainty will not be used as a reason to postpone the taking of measures for the protection of human life or health or the environment. The use of negative terms (4) implies that the principle does not give rise to an obligation to take environmental protection measures.

   The best way to appreciate the role played by the precautionary principle is to consider it alongside another, competing paradigm--the assimilative capacity approach. This approach is based on the assumptions that environmental media have a certain capacity to assimilate pollutants and that science is capable of identifying the limits of this capacity with some precision. (5) As a result, the burden of justifying environmental protection measures is placed on proponents of such measures, who must demonstrate that assimilative capacity has been or is about to be exceeded. A further underlying assumption is that social goods other than environmental protection, such as resource exploitation and economic development, are to be given priority unless a clear threat to environmental integrity is established. Furthermore, environmental protection is not regarded as being an end in itself, but rather a means to protect human interests in environmental and natural resources. (6)

   The precautionary principle, by contrast, points to the modest extent of scientific understanding of the nature and function of ecosystems and of the effects of human activities upon them. It suggests that the burden of uncertainty should not necessarily fall on the environment or on human populations, but rather that in some cases the imposition of costs in order to reduce the risk of environmental harm may be justified.

   One of the most important contributions of the precautionary principle is that it implies a new division of labour between scientists and political decision-makers. (7) Whereas under the assimilative capacity approach decision-makers defer to science, awaiting proof of causal links between activities and harm before placing restrictions on the activities, the precautionary principle acknowledges that the identification of the threshold at which action becomes necessary is a matter of policy, informed by science. (8)

   Scientific assessment permits the identification of risks of...