Interpretation and Application of the Precautionary Principle: Australia's Contribution

Australia has been a leading jurisdiction in the adoption of the precautionary principle, with widespread policy and legislative incorporation. This has paved the way for the development of a substantial jurisprudence on the interpretation and application of the principle. The international derivation of the version of the precautionary principle adopted in Australia, together with the wide range of areas in which the principle has been applied, for example biodiversity protection, environmental impact assessment, climate change, public health, etc., means that judicial consideration of the principle in Australia has the potential to form a body of common law with national and international application. Accordingly, this article reviews the adoption, interpretation and application of the precautionary principle in Australian environmental law, with a view to drawing out the general lessons this experience offers for interpretation of the principle in other, international settings .     

论预先防范原则在国际环境法中的地位

预先防范原则是在20世纪80、90年代出现在国际环境法领域的一种新的处理缺少确切科学证据的环境风险的主张.迄今已有至少八个国际环境条约载入了与预先防范原则有关的内容,虽然具体用词不尽相同;与预先防范原则有关的案例也已经有数个.以这些为研究对象,探讨预先防范原则在国际环境法上的地位.现在预先防范原则还没有形成国际环境法领域的习惯法,但很多国家愿意在处理缺少确切科学证据的环境风险时,使用与其相关的方法或措施.     

The Precautionary Principle as a Device for Greater Environmental Protection: Lessons from EC Courts

Given that the precautionary principle has never been defined in the EC Treaty, the EC jurisdictions have been playing a key role in determining the status as well as the scope of that principle. Although scholars have hitherto been paying heed to the case law on food safety, the literature has become a little thinner when one considers environmental case law. This article attempts to set the scene to explain how the precautionary principle can be invoked in different judiciary procedures at the EU level.     

The Precautionary Principle in General International Law: Combating the Babylonian Confusion

The purpose of this article is to contribute to the clarification of the legal scope of the precautionary principle. The primary focus is on general international law, so as to determine as accurately as possible what it is that 'the' precautionary principle entails. The legal development, status and implications of the principle pass in review. A definition is presented of a right and a duty of States to take precautionary action, which is deemed representative of the current state of customary international law. Several particularly controversial issues receive separate treatment, including the burden of proof, the role of uncertainty and the application of the precautionary principle to human health protection. Special attention is paid to the practical relevance of the various findings, which are placed in the context of recent developments.     

IS ARTICLE 5.7 OF THE SPS AGREEMENT AN APPLICATION OF THE PRECAUTIONARY PRINCIPLE?

The “Precautionary principle” is regarded as the new buzz phrase in the discussion of risk regulation relating to the areas of environment and health. Article 5.7 of the WTO Agreement on the Application of Sanitary and Phytosanitary Measure (SPS Agreement) uses a similar approach to the protection of human, animal and plant life, and health. It is important to pay close attention to some of the relationships concerning the precautionary principle and Article 5.7. Firstly, when a member decides to take sanitary and phytosanitary (SPS) measures, they usually act from the perspective of prudence and precaution. In addition, the precautionary principle finds similar expression in Article 5.7. However, the precautionary principle has not been explicitly written in the SPS Agreement as a ground for justifying the SPS measures in situations that are inconsistent with the obligations set out in the Agreement. The case law shows that the Panel is very careful about the use of the language of precaution. The Appellate Body is reluctant to allow the precautionary principle to override the specific obligations in the Agreement. Whether Article 5.7 can be regarded as an application of the precautionary principle needs to be examined. Under the current discourse, however, this article finds that the precautionary principle cannot by any means be used as an interpretative tool for Article 5.7. Reliance on the precautionary principle to trigger Article 5.7 is supposed to be unsuccessful. As in situations where taking SPS measures threats the environment and health become irreversible, more attention should be paid to practical issues to ensure the necessity and efficacy of the measures.     

Food Safety and the Precautionary Principle: the Legitimate Moderation of Community Courts

Abstract: The precautionary principle, though not defined in the Community Treaties, has been the subject of numerous attempts at doctrinal systematisation. These efforts have, for the most part, dealt with organising how to adopt measures banning products or methods of production. Associated with this rigorous approach to the precautionary principle are questions on moratoriums and reversal of the burden of proof. Following this logic, one must understand that the precautionary principle obliges the initiator of a project (or the producer of foodstuffs) to prove the innocuousness of its product before putting it on the market. However, this concept of the precautionary principle, while held by the larger part of doctrinal opinion, is not shared by the Community courts. These have largely developed Community law on this point with a progressive corpus of decisions that give an increasingly specific definition of the concept. This attempt at definition leads to a rational presentation of the precautionary principle as a means of dealing with scientific uncertainty and not as a way of rejecting science. The aim of this article is to show that the conception held by Community courts, while apparently less protective of human health than the doctrinal conception, has the advantage of being effective; that is to say capable of practical application, while the more rigorous interpretation leads only to a protective Utopian dead-end, which its defenders find themselves incapable of progressing beyond.     

论风险预防原则的适用要件——以国际环境法为背景

作为国际环境法的基本原则之一,风险预防原则已经在许多国际环境协定中得到了直接的规定或间接的反映。在适用风险预防原则的过程中,需要遵循以下三个方面的要件:1.适用风险预防原则的前提条件,包括风险阀值和科学不确定性的确定;2.依据风险预防原则进行决策的过程中需遵循的要件,包括成本效益分析以及根据不同的风险水平采取适当的预防措施;3.执行风险预防措施的过程中需遵循的要件,包括对措施的后期审查及相关科学信息的收集。     

EU和WTO预防原则解释和适用比较研究

预防原则是国际法上重要的法律原则,其法律地位存在很大争议,不同国际组织对其认可和适用的程度不尽相同。欧盟的预防原则理念领先于其他国家和地区,在区域内的实践呈扩大的趋势。WTO框架内预防原则的实践则发展缓慢,由于宗旨的不同和背后利益集团的博弈,与欧盟的预防原则立法和实践存在较大差异。     

我国环境保护中风险预防原则的缺失及完善

科学技术的迅速发展给人类带来了惊喜的同时也带来了巨大的风险.在环境领域,科技发展的并发症已经使生态遭受严重破坏而难以回复,而潜在的环境风险则使人们感到害怕而又无奈.正是在这样的背景下,为了应对具有科学不确定性环境问题,风险预防原则应运而生.本文通过研究外国环境法中关于风险预防原则的法律制度和实践,分析了我国环境法中风险预防原则存在的问题,提出了完善该原则的相关建议.     

Precaution, Scientific Development and Scientific Uncertainty under the WTO Agreement on Sanitary and Phytosanitary Measures

The World Trade Organization (WTO) Appellate Body has noted that the precautionary principle will be relevant to the interpretation of the WTO Agreement on Sanitary and Phytosanitary Measures in various ways, although the Appellate Body has declined to determine the status of the precautionary principle for international law or to find that it has been written into the SPS Agreement. The Appellate Body's awareness of precaution, the dynamics of scientific research and the nature of scientific uncertainty is to be welcomed. This awareness is helpful in dealing with new and emerging issues, such as the question of when a risk assessment relied upon by a WTO member becomes outdated by virtue of subsequent scientific developments. If maintained, an overly rigid approach to risk assessment, with a tight temporal focus, will inadequately acknowledge the natural processes of flux in the development of scientific knowledge.     

澳大利亚的能源法律制度及其借鉴

澳大利亚能源资源丰富，但面临着石油自给不足、温室气体排放偏高、能源投资缺口较大和能源市场改革不到位等问题；“繁荣、安全和永续”是澳大利亚逐渐形成的基本能源政策。澳大利亚能源法律体系非常全面，涉及各类能源和能源的各个领域，已建立起比较完善的能源法律制度体系。建立完善的能源法律体系和能源管理体制，在法律的框架内积极推进能源领域的市场化改革，并重视能源的供给和使用安全，是我国完善能源法律体系过程中值得参考和借鉴的有益经验。     

The legal regime for application of the precautionary principle in India: future directions for the GM regulatory regime

The precautionary principle is one of the most contentious principles in contemporary international legal developments. The very fact that it is a principle of international environmental law has been questioned by many legal scholars. However, this does not take away the fact that the precautionary principle continues to be applied widely across sectors both internationally and nationally. The nature and scope of its application has varied widely according to the context and sector within which it has been applied. The central issue which this article seeks to address is the regulatory and the policy making space that is available to the Government of India in the context of the obligations as undertaken under the Cartagena Protocol and under various other international treaties. The regulatory space would also be affected by the domestic legal developments across sectors in which the principle has been applied. India’s recent decision on the large-scale commercialisation of Bt-Cotton has already created much debate regarding its appropriateness given the realities of Indian farm practices. More specifically, it has also led to a rethinking of the role and application of the precautionary principle in addressing these realities. Considering that the Indian policy on biotechnology is currently being drafted, it is important to look into the scope of applying the precautionary principle in taking any decision on genetically modified organisms (GMO) in terms of their distribution of risks, incorporating the social and equity impacts of such decisions.

国际法上的风险预防原则

风险预防原则已经成为国际和国内环境保护法律制度的一项重要的基本原则。该原则要求我们在进行任何的经济活动之前就对该活动可能会对自然环境和生态系统造成的影响进行风险预测,并相应采取针对性的措施,从而更好地保护自然环境和生态系统。但如何将该原则运用到危险废物越境转移领域,仍然有待我们进行理论上的探讨。应加强对危险废物越境转移中运用该原则等方面的探讨。     

The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages

The precautionary principle and the ecosystem approach are often mentioned in one breath. This article explores the differences, similarities and relationship between the two concepts. In a comparative and integrated assessment, it addresses, among other things, the purpose, core elements and status of the precautionary principle and the ecosystem approach under international law, the role of scientific information in their application, and the management actions associated with their implementation.     

Eyes Wide Shut: On Risk,Rule of Law and Precaution

The rule of law offers legal certainty, laying down boundaries to the state's playing field. The precautionary approach stipulates that the absence of scientific certainty is no reason not to act to prevent harm. Here, uncertainty frames action. The precautionary approach potentially expands the state's playing field, and this expansion might well undermine the precepts of the rule of law. The certainty‐uncertainty axis exposes a tension between the rule of law and the precautionary approach in what Ulrich Beck has termed the world risk society in second modernity. It is this tension that is the focus of analysis in this article.     

略论我国土壤污染防治法的基本原则

土壤污染防治法的基本原则是贯穿于土壤污染防治法律之中的根本指导思想或准则,是土壤污染防治法的本质与价值的交接点,对于土壤污染防治法的运作具有现实的意义,它也是克服土壤污染防治法成为成文法局限性的有效工具。土壤污染防治法的基本原则包括预防原则、可持续利用原则、污染者付费原则与综合生态系统管理原则,这四项基本原则是一个有机联系的整体。     

外资征收与环境保护——不补偿环境征收之合法性刍议

由于环境保护关系到人类整体和国际社会共同利益,在外资征收的立法与实践中环境保护和外资保护应予一体化考虑,但现状却反映出外资私益优先于环境公益的倾向。从建立国际经济新秩序的角度看,为使发展中国家不致因环保因素付出不必要的代价,环境征收不应具有补偿性。而且,不补偿环境征收合法性根植于污染者付费原则、预防原则、治安权例外以及国际环境法义务优先原则。     

风险行政的预防原则

风险预防不同于危险防御,其适用于科学上不确定的风险行政领域,在我国具有法律原则的重要地位。为了更好地保护基本权利,国家可以根据预防原则设计风险预防机制,并在特定条件下采取一定的风险预防措施。但因为风险的不确定性,国家在采取风险预防措施时存在较大的裁量空间,也容易侵害经营自由、科研自由或引发贸易纠纷。故而,如果某产品有潜在的负面效果,经风险评估判明存在科学上的不确定性,方可决定采取风险预防措施。在采取措施时,国家应当遵守比例原则、平等对待原则等要求,应当说明理由,保障公众的参与机会,并根据情况变化在事后进行评估与调整,以提高措施的可接受性、充实风险信息。在风险预防措施的合法性引起争讼时,因存在科学上的不确定性而难以适用客观性举证责任,应由双方主体在各自的责任范围内举证说明,以帮助法院解明案情,适时作出裁判。     

GENERAL AND PARTICULAR APPLYING ELEMENTS OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL TRADE

In the context of WTO dispute settlement, the precautionary principle is a predominant concept, in the face of serious risks and scientific uncertainty, that is often characterized as “better safe than sorry.” Although the precautionary principle appears in various treaties, declarations, and even laws, it is often formulated in abstract terms, leading to the great ambiguity of its primary elements. The Panel and the Appellate Body always avoid discussing the precautionary principle in WTO cases due to its obscure definition. On March 13, 2012, the United States, the European Union, and Japan each requested consultations with China as China’s measures that made restrictions on the exportation of rare earths, tungsten, and molybdenum had been in conflict with their national interest. After examining the matter at issue, the Panel and the Appellate Body rejected China’s arguments regardless of its repeated claims about its consideration of environmental protection. With the case as the starting point, this article focuses on the precautionary principle and explores its status and elements, in order to establish a two-dimensional model of the precautionary principle that is applicable in international trade.     

Privacy and the precautionary principle

The precautionary principle – which implies that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing protective measures – has been adopted as a standard of environmental and health protection in international and European legislation. This article offers an overview of the precautionary principle as a legal standard applicable to European privacy and data protection legislation. For this reason, it takes particularly into account the guidelines of this legislation as well as the privacy impact assessment framework, raised by the European Commission through the Recommendation on Radio-Frequency Identification applications. In brief, the article stresses the role of the precautionary principle in improving privacy protection through liability, prudence and transparency.