PRECAUTIONARY PRINCIPLE

SUBMITTED TO:
PROF. HRISHIKESH MANU
FACULTY OF ENVIRONMENTAL LAW
SUBMITTED BY:
SHUBHI MISHRA
BBA LLB. (HONS.)
4 TH YEAR, 7TH SEMESTER
1439

ROUGH DRAFT SUBMITTED FOR THE PARTIAL FULFILLMENT

OF THE COURSE OF ENVIRONMENTAL LAW FOR THE COURSE
BBA LLB.(HONS.)

August , 2018

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have ever faced. Though

this project has been presented by me but there are many people who remained in veil, who

gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher PROF. HRISHIKESH MANU without

the kind support and help of whom the completion of the project was a herculean task for me.

She donated her valuable time from her busy schedule to help me to complete this project and

suggested me from where and how to collect information and data.

I am very thankful to the librarian who provided me several books on this topic which proved

beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very

useful and could not be ignored in writing the project. I want to convey a most sincere thanks

to my parents for helping me throughout the project.

SHUBHI MISHRA

ROLL NO. 1439

7th SEMESTER

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Objectives of the Study:
To study all the aspects environmental law precisely the precautionary principle.

Hypothesis:
The general view of the researcher is to find that should precautionary principal be a statutory requirement
universally.

Research Methodology:
The researcher has used doctrinal method in her research, that is, extensive use of literary sources and materials.
The researcher mainly uses secondary sources to provide substance to the research analysis. In some cases, the
researcher shall be bound to extract materials directly from the literary work of certain authors which the
researcher intend to adequately cite and notify in due course of time.

Sources of Data:
The researcher will collect the data from the following sources:

Secondary Sources: Books

Websites
Articles

Limitations of the Study:

Though this is an immense project and pages can be written over the topic due to time, finance, and territorial
constraints the researcher has been compelled to deal with a limited number of concepts only.

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INTRODUCTION.
The precautionary principle (or precautionary approach) generally defines actions on issues considered to be
uncertain, for instance applied in assessing risk management. The principle is used by policy makers to justify
discretionary decisions in situations where there is the possibility of harm from making a certain decision (e.g.
taking a particular course of action) when extensive scientific knowledge on the matter is lacking. The principle
implies that there is a social responsibility to protect the public from exposure to harm, when scientific
investigation has found a plausible risk. These protections can be relaxed only if further scientific findings emerge
that provide sound evidence that no harm will result.

In some legal systems, as in law of the European Union, the application of the precautionary principle has been
made a statutory requirement in some areas of law.

Regarding international conduct, the first endorsement of the principle was in 1982 when the World Charter for
Nature was adopted by the United Nations General Assembly, while its first international implementation was in
1987 through the Montreal Protocol. Soon after, the principle integrated with many other legally binding
international treaties such as the Rio Declaration and Kyoto Protocol.

The concept "precautionary principle" is generally considered to have arisen in English from a translation of the
German term Vorsorgeprinzip in the 1980s. In 1988, Konrad von Moltke described the German concept for a
British audience, which he translated into English as the precautionary principle.

The concepts underpinning the precautionary principle pre-date the term's inception. For example, the essence of
the principle is captured in a number of cautionary aphorisms such as "an ounce of prevention is worth a pound
of cure", "better safe than sorry", and "look before you leap". The precautionary principle may also be interpreted
as the evolution of the "ancient-medical principle" of "first, do no harm" to apply to institutions and institutional
decision-making processes rather than individuals.

In economics, the Precautionary Principle has been analysed in terms of "the effect on rational decision-making",
of "the interaction of irreversibility" and "uncertainty". Authors such as Epstein and Arrow and Fischer (1974)
show that "irreversibility of possible future consequences" creates a "quasi-option effect" which should induce a
"risk-neutral" society to favour current decisions that allow for more flexibility in the future. Gollier et al. (2000)
conclude that "more scientific uncertainty as to the distribution of a future risk that is, a larger variability of beliefs
– should induce society to take stronger prevention measures today" .

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1. INTERNATIONAL AGREEMENTS AND DECLARATIONS.

Precautionary Principle-International Instruments

The Precautionary Principle appeared on the global stage in the 1980s.

It was first acknowledged formally in the Preamble to the Vienna

Convention for the Protection of the Ozone Layer. The parties who

were signatory to the Convention acknowledged the precautionary

measures which have already been taken at the international and the

national levels to protect the ozone layer.[6] Banking on this

recognition, the Montreal Protocol was introduced in 1987 where the

signatories agreed to undertake precautionary measures to control the

emission of substances which depleted the ozone layer. In this Protocol

also, measures taken earlier to reduce the emission of

chlorofluorocarbons were recognized.[7] The need to adopt which

were precautionary in nature was also recognized in the Second North

Sea Conference Ministerial Declaration (the London Declaration) in

1987.[8] At the Third Sea Conference, the parties came to a decision

that they would continue applying preventive measures to prevent

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damage, even there is no scientific evidence. The precautionary

principle was also included in the Convention on the Protection of the

Marine Environment of the North-East Atlantic, which was introduced

in the year 1992.[9]

The Bergen Ministerial Declaration on Sustainable Development in the

Economic Commission for Europe Region, 1990 stated that the

precautionary principle has a very crucial link with the concept of

sustainable development.[10] The Convention on the Ban of Import

into Africa and the Control of Transboundary Movement and

Management of Hazardous Wastes within Africa, 1991 (Bamako

Convention) stated that the signatories should adopt and implement

precautionary and preventive measures to prevent the release of such

substances in the environment which harms the environment, even

when there is scientific proof available that such substances are

causing the harm.[11]

In the year 1992, the signatories of the Helsinki Convention on the

Protection and Use of Transboundary Watercourses and International

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 Lakes was introduced. The signatories to this Convention decided to

be guided by the Precautionary Principle.[12]

The year of 1992 was very important in this regard. There was a

convergence of the precautionary principle and the climate change

issue in International Law. The Precautionary Principle was

acknowledged on an international level when the UN Framework

Convention on Climate Change was adopted.

2. PRECAUTIONARY PRINCIPLE IN INDIA

The Indian Judiciary actively supports the Precautionary Principle. In

the judicial pronouncement of Vellore Citizens Welfare Forum v

UOI,[13] the Court opined that sustainable development t is the need

of the hour. The court emphasized on the fact that there should be a

balance between economic growth and protection of the environment.

The Court rejected the traditional concept that ecology and

development are opposed to each other. The Court also reviewed the

development of the concept of sustainable development in the

international sphere. The Court referred to the Stockholm Declaration

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of 1972, Caring for Earth, 1991, the Earth Summit, and the Rio

Declaration of 1992 and opined that the Precautionary Principle and

the Polluter Pays Principle are indispensable features of Sustainable

Development. In the case of M C Mehta v Kamal Nath, the Supreme

Court reiterated the decision given in Vellore Citizens Welfare Forum

case stating that the Precautionary Principle is a part of the

environment law in India.[14]

The Precautionary Principle was very comprehensively reviewed by

the Apex Court in the case of AP Control Pollution Board vs. Prof M

V Nayadu.[15] The Court stated that it is better to go wrong in taking

caution and prevent environmental harm rather than waiting for the

issue to materialize into an irreversible problem. The Court opined that

the Precautionary Principle was evolved because of lack of scientific

certainty only, and the principle involves anticipating the harm the

environment may suffer and act on the basis of that. In the case of

Narmada Bachao Andolan v UOI,[16] the Apex Court very clearly laid

down the proposition of law, and specifically of Precautionary

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 Principle. The Court stated that when an issue pertains to

environmental damage, the onus of proof is on the person who is

contending that the activities carried on by him are not harmful to the

environment. The party who is giving such contention also has to

satisfy the Court of the same, that there will be no environmental

degradation due to his activities.

3. THE PRECAUTIONARY PRINCIPLE IN INDIAN COURTS

AP POLLUTION CONTROL BOARD CASE

VELLORE CITIZEN

NARMADA BACHAO NADOLAN.

he most common definition of precautionary principle can be found in the Rio Declaration.

U.N. reports, states 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.”

Although, it is true that the basis of environmental damage should be scientific, but if there is

a threat to the environment, a corrective action must be taken and lack of certainty will not

lead to failure to act.

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Both international environmental law and the domestic law of different countries have

acknowledged the precautionary principle. It has been incorporated into many international

conventions and national and local legislations. It has also been raised in many cases before

the international and domestic courts.

he most common definition of precautionary principle can be found in the Rio Declaration.

U.N. reports, states 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.”

Although, it is true that the basis of environmental damage should be scientific, but if there is

a threat to the environment, a corrective action must be taken and lack of certainty will not

lead to failure to act.

Both international environmental law and the domestic law of different countries have

acknowledged the precautionary principle. It has been incorporated into many international

conventions and national and local legislations. It has also been raised in many cases before

the international and domestic courts.

principle. The first element is that it is the responsibility of the State government and the

statutory authorities to prevent, anticipate and attack the causes of detriment to the

environment. According to the second element, lack of scientific certainty must not be used

as a defence for inaction in cases of environmental degradation. This was borrowed from the

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Rio declaration. The third element shifts the burden to prove that the activity is harmless to

the environment to the industrialist. The Court acknowledged in this case that the

precautionary principle is an indispensable feature of sustainable development.

In the case of T.N. Godavarman Thirumalpad v. UOI and Others 1996) 5 SCC 647 the court

said that in the application of sustainable development, progress and environmental protection

must be balanced. This is known as the principle of proportionality.

The Vellore citizens’ welfare forum case was filed by a group of citizens to coerce the

government authorities to take action against some tanneries which discharged untreated waste

thus violating the existing environmental laws. The facts of the case did not indicate a risk to

the environment or scientific certainty. But the existing laws prohibited such discharge. The

Court reiterated the precautionary principle in this case and also declared it to be a part of both

domestic environmental law and custom.

In many succeeding case laws before the court, it reiterated the precautionary principle and

emphasised the need for scientific inputs for adequate action against harm to the environment.

In most of these cases the court implied that it is better to be safe than sorry.

The main issue in the case of A.P. Pollution Control Board v. M.V. Nayadu (2001) 2 SCC 62

was whether a hazardous industry must be allowed to be established within 10 km of reservoirs

used for drinking water. The court held that since the degree of potential risk is so high in this

case,

therefore, this is exactly where this principle comes into play.

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In the landmark judgement of M.C. Mehta v. UOI (1996) 5 SCC 647, the Supreme Court

ordered the industries in the vicinity of the Taj Mahal to use natural gas as a substitute of

coal/coke as a fuel. The court stated that the pollution must be controlled at any cost. The

court also stated that the burden of proof is on the industry to prove beyond reasonable doubt

that the use of coke/coal is benevolent for the environment.

In the Vellore citizens’ welfare forum case, the Supreme Court held that the burden of proof

that the industrial activity is benign for the environment in on the proponent of the activity.

This strict application of the precautionary principle leads to regulatory paralysis. In all

subsequent cases, it was assumed that except when the activity is proved to be completely

benign for the environment, it is assumed to be harmful to the environment. Industrialists

exonerate their burden of proof by depicting the absence of ecological or medical distress.

If the effects of an industrial activity is known, then the precautionary principle is not invoked.

Rather, the principle of sustainable development is applied. The Bombay High Court in the

case of Bombay Environmental Action Group v State of Maharashtra, held that the

precautionary principle had no application in this case as there was no scientific uncertainty.

It is important to discuss the legal status of the precautionary principle. In the Vellore case, it

was held that both precautionary and polluter pays principle were domestic law as well as

customary international law. Articles 21, 47, 48A and 51A(g) of the Indian Constitution along

with statutory environmental laws are sufficient to prove it domestic law. The Court said that

it is a well-established fact that Sustainable Development is part of a customary international

law, though its features

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therefore, this is exactly where this principle comes into play.

In the landmark judgement of M.C. Mehta v. UOI (1996) 5 SCC 647, the Supreme Court

ordered the industries in the vicinity of the Taj Mahal to use natural gas as a substitute of

coal/coke as a fuel. The court stated that the pollution must be controlled at any cost. The

court also stated that the burden of proof is on the industry to prove beyond reasonable doubt

that the use of coke/coal is benevolent for the environment.

In the Vellore citizens’ welfare forum case, the Supreme Court held that the burden of proof

that the industrial activity is benign for the environment in on the proponent of the activity.

This strict application of the precautionary principle leads to regulatory paralysis. In all

subsequent cases, it was assumed that except when the activity is proved to be completely

benign for the environment, it is assumed to be harmful to the environment. Industrialists

exonerate their burden of proof by depicting the absence of ecological or medical distress.

If the effects of an industrial activity is known, then the precautionary principle is not invoked.

Rather, the principle of sustainable development is applied. The Bombay High Court in the

case of Bombay Environmental Action Group v State of Maharashtra, held that the

precautionary principle had no application in this case as there was no scientific uncertainty.

It is important to discuss the legal status of the precautionary principle. In the Vellore case, it

was held that both precautionary and polluter pays principle were domestic law as well as

customary international law. Articles 21, 47, 48A and 51A(g) of the Indian Constitution along

with statutory environmental laws are sufficient to prove it domestic law. The Court said that

13
it is a well-established fact that Sustainable Development is part of a customary international

law, though its features of sustainable development’, ‘imperative for preserving ecology,’ and

‘part of the environmental law of India.’

Third, the Supreme Court in the Vellore Citizens’ Welfare Forum case adopted the

controversial strong version of the precautionary principle into Indian law. This case is oft

cited in the academic literature and is universally admired as a landmark judgment illustrative

of the creativity, intellectual openness and mettle of Indian Courts. The Vellore case as well

as the case law it has spawned therefore merits careful scrutiny.

In Vellore Citizens’ Welfare Forum, the Supreme Court identified three elements to the

precautionary principle. The first is that ‘environmental measures - by the State Government

and the statutory authorities - must anticipate, prevent and attack the causes of environmental

degradation.’ The second, borrowing from the Rio principle formulation, is that ‘where there

are threats of serious and irreversible damage, lack of scientific certainty should not be used

as a reason for postponing measures to prevent environmental degradation’. The third element

shifts the burden of proof to the developer/industrialist.

The Vellore Citizens’ Welfare Forum case is telegraphic in its treatment of the precautionary

principle. It does not raise or address any of the interpretational questions that plague the

precautionary principle in international environmental law. It does not in the municipal context

clarify what degree of risk triggers application of this principle, what specific action should

be taken when the application of this principle is triggered and the extent to which cost plays

a role in the choice of measures to be taken in response to the risk.

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The Court does, however, import the balancing exercise inherent in the sustainable

development principle into the application of the precautionary principle. In the Vellore

Citizens’ Welfare Forum case it held that the precautionary principle and the polluter pays

principles are ‘essential features of sustainable development’.

Although the NGT is required to apply the precautionary principle in reaching decisions, this

principle is neither relevant nor necessary in the context of its exercise of jurisdiction, which

in any case is extensive.

In the Vellore Citizens' Welfare Forum case the Supreme Court held the precautionary and the

polluter pays principles are part of the domestic environmental law, as well – arguably – as

customary international law. In the Court’s reasoning Articles 21, 47, 48A and 51A(g), as well

as India’s network of statutory environmental laws, were sufficient to render the precautionary

and the polluter pays principles part of the domestic environmental law. Further, the Court

declared that ‘sustainable development as a balancing concept between ecology and

development has been accepted as a part of the Customary International Law although its

salient features are yet to be finalized by international law jurists’.

CONCLUSION

This analysis of the case law on the precautionary principle reveals the following. First, that

the courts often engage the precautionary principle when the background conditions for its

engagement (viz scientific uncertainty) are not met. Second that the courts are in reality

engaging the preventive principle in as far as they are crafting responses to known (not

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unknown or unknowable) risks. In other words, the courts while they cite the precautionary

principle, are in fact engaging prevention broadly conceived rather than precaution narrowly

conceived. Third, they treat the notions of sustainable development and precaution/prevention

as a fungible mix of elements, justifying, therefore, a balancing exercise between development

and environmental concerns and priorities. While such a balancing exercise may be essential

and inevitable in environmental cases, invoking the precautionary principle permits the courts

to shift the burden of proof to the industrialist, and fundamentally change the dynamics of the

decision-making process.

The precautionary principle has been defined in many international treaties and domestic

legislation. The application of principle requires interpretation of it by the policymakers. The

absence of a widely agreed upon definition undermines the precautionary principle. The

different interpretation of the principle leads to decision makers responding differently to

different industrial activities.

To apply to implement precautionary effectively, its suitable place must be found in the

intersecting spheres of politics and science. The most important factor to be taken into account

is the degree to which science should drive policymaking. The crux of the principle is the

relationship between the expert knowledge of scientists and the value choices of public

officials.

The definition of the precautionary principle in various international instruments such as the

Rio Declaration includes the phrase ‘lack of certainty’. This implies that there are cases where

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 there can be full certainty. However, the policymakers as well as the scientists must accept

that uncertainty is an inevitable part of environmental policymaking.

Another fact which must be acknowledged while applying the precautionary principle is that

is the significance of ignorance. Sometimes, an action is taken based on notional threats to the

environment without a proper risk assessment.

Many scientists have criticised both international and domestic environmental law for

undermining the role of science in defining the precautionary principle.

Many policymakers argue that precautionary principle is based entirely on legislative and
administrative aspects and not concerned with science. However, in reality, the principle is not
anti-science and depends on science. This disagreement arises because science has failed in
providing a full proof protection to the environment.

Conclusion
It is clear that the law on sustainable development is gaining momentum at local, national,
regional, and international levels. While the four fundamental elements of sustainable
development – the precautionary principle, intergenerational and intra generational equity, the
conservation of biological diversity and ecological integrity, and the internalisation of
environmental costs – have been much discussed and promulgated in various international and
national legal contexts, there is still a long way to go in terms of their implementation.

The role of the judiciary in relation to the law of sustainable development is thus of the greatest
importance[lxxii]. As an offshoot of the judicial recognition the National Environmental Policy
adopted precautionary principle as a guiding principle[lxxiii]. However, it is still a long way to
go before the PP takes its rightful place in Indian environmental laws and even more
importantly gets effectively implemented.

Precautionary Principle in International Instruments

The precautionary principle appeared at the international level in the mid 1980s. The principle

was first formally acknowledged internationally in the Preamble to the 1985 Vienna
17
Convention for the Protection of the Ozone Layer, in which the Parties acknowledged the

‘precautionary measures’ which had already been undertaken at both the national and

international levels in relation to the protection of the ozone layer[xiv]. Building on this

recognition, in 1987, the Parties to the Montreal Protocol on Substances that Deplete the

Ozone Layer agreed to take ‘precautionary measures’ to control global emissions of ozone

depleting substances and noted the ‘precautionary measures’ already undertaken at national

and regional levels in relation to the emission of chlorofluorocarbons[xv]. The need for a

‘precautionary approach’ was also recognised in the sequence of conferences on the North

Sea. In the Second North Sea Conference Ministerial Declaration (the London Declaration) in

1987, the principle was referred to three times:

“[I]n 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 scientific

evidence;

…[B]y combining…approaches based on emission standards and environmental quality

objectives, a more precautionary approach to dangerous substances will be established; [The

parties] [t]herefore agree to…accept the principle of safeguarding the marine ecosystem of the

North Sea by reduction polluting emissions of substances that are persistent, toxic and liable

to bio accumulate at source by the use of the best available technology and other appropriate

measures. This applies especially when there is reason to assume that certain damage or

harmful effects on the living resources of the sea are likely to be caused by such substances,
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even where there is no scientific evidence to prove a causal link between emissions and effects

(‘the principle of precautionary action’)”[xvi].

At the Third North Sea Conference in 1990, the participants agreed to: “continue to apply the

Precautionary Principle, that is to take action to avoid potentially damaging impacts of

substances that are persistent, toxic and liable to bio accumulate even where there is no

scientific evidence to prove a causal link between emission and effects”[xvii]. This process

led to the inclusion of the precautionary principle in the Convention on the Protection of the

Marine Environment of the North–East Atlantic (the OPSAR Convention) of 1992[xviii].

In 1990, the Bergen Ministerial Declaration on Sustainable Development in the Economic

Commission for Europe Region was the first international instrument to treat the principle as

one of general application and linked to sustainable development. The Declaration states:

“In order to achieve sustainable development, policies must be based on the precautionary

principle. Environmental measures must anticipate, prevent, and attack the causes of

environmental degradation. Where there are threats of serious or irreversible damage, lack of

full scientific certainty should not be used as a reason for postponing measures to prevent

environmental degradation”[xix].

In 1991, the Convention on the Ban of Import into Africa and the Control of Transboundary

Movement and Management of Hazardous Wastes within Africa (the Bamako Convention),

signed in Bamako on 29 January 1991[xx], required parties to strive to adopt and implement:

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“the preventative, precautionary approach to pollution problems which entails, inter alia,

preventing the release into the environment of substances which may cause harm to humans

or the environment without waiting for scientific proof regarding such harm. The parties shall

co-operate with each other in taking the appropriate measures to implement the precautionary

principle to pollution prevention through the application of clean production methods”[xxi].

In 1991, the United Nations Economic and Social Commission for Asia and the Pacific

(ESCAP) resolved that “in order to achieve sustainable development, policies must be based

on the precautionary principle”[xxii].

In 1992, the Parties to the Helsinki Convention on the Protection and Use of Transboundary

Watercourses and International Lakes, agreed to be guided by:

“The precautionary principle, by virtue of which action to avoid the potential transboundary

impact of the release of hazardous substances shall not be postponed on the ground that

scientific research has not fully proved a causal link between those substances, on the one

hand, and the potential transboundary impact on the other hand”[xxiii].

The four instruments signed at the UNCED (the Earth Summit) in Rio de Janeiro also refer to

the precautionary principle[xxiv]. The Rio Declaration states in Principle 15:

“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 a reason for postponing cost-effective

measures to prevent environmental degradation”.

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The Convention on Biological Diversity recites in the Preamble:

“Noting also that where there is a threat of significant reduction or loss of biological diversity,

lack of full scientific certainty should not be used as a reason for postponing measures to avoid

or minimise such a threat”[xxv].

Article 3(3) of the Framework Convention on Climate Change provides that:

“The Parties should take precautionary measures 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 certainty should not be used as a reason for

postponing such measures, taking into account that policies and measures to deal with climate

change should be cost-effective so as to ensure global benefits at the lowest possible cost. To

achieve this, such policies and measures should take into account different socio- economic

contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse

gases and adaptation, and comprise all economic sectors. Efforts to address climate change

may be carried out cooperatively by interested Parties”[xxvi].

Agenda 21 refers to the precautionary principle in a number of contexts. For example, in

relation to marine environmental protection, Chapter 17 calls for:

“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, waste

audits and minimization, construction and/or improvement of sewage treatment facilities,

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quality management criteria for the proper handling of hazardous substances, and a

comprehensive approach to damaging impacts from air, land and water”[xxvii].

In dealing with the protection of the quality and supply of freshwater resources, Chapter 18 of

Agenda 21 requires Parties to implement various activities including:

“Introduction of the precautionary approach in water-quality management, where appropriate,

with a focus on pollution minimization and prevention through use of new technologies,

product and process change, pollution reduction at source and effluent reuse, recycling and

recovery, treatment and environmentally safe disposal”[xxviii].

In the context of science and sustainable development, Chapter 35 of Agenda 21 states:

“In the face of threats of irreversible environmental damage, lack of full scientific

understanding should not be an excuse for postponing actions which are justified in their own

right. The precautionary approach could provide a basis for policies relating to complex

systems that are not yet fully understood and whose consequences of disturbances cannot yet

be predicted”[xxix].

Many other conventions have subsequently committed their Parties to apply the precautionary

principle[xxx].

Most importantly, 1992 paved the way for the convergence of the precautionary principle and

the climate change issue in international law. At Rio de Janeiro, the world acknowledged the

precautionary principle at the level of international law when it adopted the United Nations

22
Framework Convention on Climate Change. Article 3 of the Climate Change Convention

partly provides that:

“The parties should take precautionary measures to anticipate, prevent or minimize the causes

of climate change and mitigate its adverse effects. Where there are threats of serious or

irreversi.ble damage, lack of full scientific research should not be used as a reason for

postponing 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.”

A reference to the afore quoted article was provided in the Preamble of the 1997 Kyoto

Protocol and worded as follows, “Being guided by Article 3 of the Convention”. The

precautionary principle is thus a norm that parties to the UNFCCC have endorsed. Contested

by some environmentalist and political analysts for being a weak precautionary formulation,

legal positivists argue that law is law and its merits has to be interpreted without going beyond

the wordings of the pertinent international agreement[xxxi].

Precautionary Principle as a Rule of Customary Law

The status of the precautionary principle as a rule of customary law is significant because a

rule of customary law creates obligations for all states, except those that have persistently

objected to the practice and its legal consequences. The statute of International Court of Justice

defines customary international law as “evidence of general practice accepted as law”[xxxii].

The Nicaragua case[xxxiii] and the North Sea Continental Shelf case[xxxiv] complement this

article of the Statute and clarify two requirements of customary international law. According

23
to International Court of Justice, customary international law arises when nations follow a

practice in an extensive and virtually uniform manner and this practice is followed with the

conviction that it is obligatory to do so under international law (opinio juris). Consequently,

the opposition of some states does not interfere with the development of a customary

rule[xxxv].

However, the best indicators of state practice remain the instruments of international law and

state domestic law. Currently, the precautionary principle is used in more than 90 international

declarations and agreements[xxxvi]. In this context, the number of ratifications (majority of

treaties are multilateral) and the number of states signing declarations also reflect broad

acceptance of the rule by states[xxxvii]. The abundance of treaties and declarations

incorporating the precautionary principle provides at least an estimate of state practice and

acceptance, which implies that the precautionary principle is crystallizing into a rule of

customary environmental law. Another primary indicator of state practice is domestic law.

The precautionary principle is widely used in the domestic environmental law of Germany,

Belgium and the Nordic countries (Denmark, Norway, Sweden, Finland and Island)[xxxviii].

In 1992, the principle became part of National Strategy for Ecologically Sustainable

Development in Australia. In 1993, the principle was incorporated into Australia’s

Environmental Protection Act[xxxix]. In 1996, the precautionary principle was defined in the

Oceans Act of Canada[xl]. Even US law makes some indirect allusions to the precautionary

principle (as measures) when dealing with questions of food safety[xli] and air pollution[xlii].

Furthermore, as a part of environmental impact assessment, the precautionary principle may

24
be found in the local laws of about fifty countries[xliii]. These examples illustrate the wide

implementation of the procedural aspect of the precautionary principle.

Precautionary Principle in Indian Law

The Indian courts have particularly embraced the precautionary principle.

In Vellore Citizens Welfare Forum v. Union of India[xliv], the petitioners filed a petition in

the public interest under Article 32 of the Constitution of India, directed against the pollution

caused by enormous discharge of untreated effluent by the tanneries and other industries in

the State of Tamil Nadu. The Supreme Court of India noted that:

“though the leather industry is of vital importance to the country as it generates foreign

exchange and provides employment avenues it has no right to destroy the ecology, degrade

the environment and pose as a health hazard”[xlv]. The Court recognised that a balance must

be struck between the economy and the environment:

“The traditional concept that development and ecology are opposed to each other, is no longer

acceptable; ‘Sustainable Development’ is the answer”[xlvi].

It reviewed the development of the concept of sustainable development in the international

sphere, from the Stockholm Declaration of 1972, Our Common Future in 1987 and Caring for

the Earth in 1991, to the Earth Summit and the Rio Declaration in 1992.[xlvii] It went on to

state:

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“Some of the salient principles of ‘Sustainable Development’ as culled out from the

Brundtland Report and other international documents are Intergenerational Equity, Use and

Conservation of Natural Resources, Environmental Protection, the Precautionary Principle,

Polluter Pays, principle, Obligation to assist and co-operate, Eradication of Poverty and

Financial Assistance to the developing countries. We are, however, of the view that ‘The

Precautionary Principle’ and ‘The Polluter Pays’ principle are essential features of

‘Sustainable Development’. The ‘Precautionary Principle’ in the context of the municipal law

means:

Environmental measures – by the State Government and the statutory authorities – must

anticipate, prevent and attack the causes of environmental degradation.

Where there are threats of serious and irreversible damage, lack of scientific certainty should

not be used as a reason for postponing measures to prevent environmental degradation.

The ‘Onus of proof’ is on the actor or the developer/industrialist to show that his action is

environmentally benign”.

The Supreme Court held that “the precautionary principle and the polluter pays principle are

part of the environmental law of the country”[xlviii].

In M.C Mehta v. Kamal Nath[xlix], the Supreme Court of India affirmed the decision in

Vellore Citizens’ Welfare Forum v Union on India[l] upholding the precautionary principle as

part of the environmental law of India[li].

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In AP Pollution Control Board v. Prof. M V Nayudu[lii], the Supreme Court comprehensively

reviewed the precautionary principle. An application was submitted by a company to the

Pollution Control Board for permission to set up an industry for production on “BSS Castor

Oil Derivatives”. Although a letter of intent had later been received by the company, the

Pollution Control Board did not give its no objection certificate to the location of the industry

on the site proposed by it. The Pollution Control Board, while rejecting the application for

consent, inter alia, stated that the factory fell under the red category of polluting industry and

it would not be desirable to locate such an industry in the catchment area of Himayat Sagar, a

lake in Andhra Pradesh. The appeal filed by the company against the decision of the Pollution

Control Board was accepted by the appellate authority. A writ petition was filed in the nature

of public interest litigation and also by the Gram Panchayat challenging the order of the

appellate authority but the writ petition was dismissed by the High Court. On the other hand,

the writ petition filed by the company was allowed and the High Court directed the Pollution

Board to grant consent subject to such conditions as may be imposed by it. The decision of

the High Court was the subject matter of challenge in the Supreme Court of India. The

Supreme Court referred to the difficulty courts face in dealing with highly technological or

scientific data. The Court noted that uncertainty in science in the environmental context has

led international conferences to formulate new legal theories and rules of evidence. One of

these is the precautionary principle[liii].

The Supreme Court discussed the earlier decision in Vellore Citizens Welfare Forum v Union

of India[liv] where it was held that the precautionary principle, and the shifting of the burden

27
of proof onto the developer or industrialist who is proposing to alter the status quo, are part of

the environmental law of the country. They found it “necessary to explain the meaning of the

principles in more detail, so that courts and tribunals or environmental authorities can properly

apply the said principles in the matters which come before them”[lv].

The Court reviewed the development of the precautionary principle at international level,

including reference to Principle 15 of the Rio Declaration. The Court identified inadequacies

of science as the real basis that has led to the precautionary principle[lvi]. The precautionary

principle is “based on the theory that it is better to err on the side of caution and prevent

environmental harm which may become irreversible”.[lvii] It was observed:

“The principle of precaution involves the anticipation of environmental harm and taking

measures to avoid it, or to choose the least environmentally harmful activity. It is based on

scientific uncertainty. Environmental protection should not only aim at protecting health,

prosperity and economic interest, but also protect the environment for its own sake.

Precautionary duties must not only be triggered by the suspicion of concrete danger, but also

by (justified) concern or risk potential”[lviii].

The Court next elaborated on the burden of proof referred to in the Vellore case and stated:

“It is to be noticed that while the inadequacies of science have led to the ‘precautionary

principle’, the said ‘precautionary principle’ in its turn, has led to the special principle of

burden of proof in environmental cases where burden as to the absence of injurious effect of

the actions proposed, is placed on those who want to change the status quo reversal of the

28
burden of proof, because otherwise in environmental cases, those opposing the change would

be compelled to preserve the status quo. This is often termed as a reversal of the burden of

proof, because otherwise in environmental cases, those opposing the change would be

compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is

necessary that the party attempting to preserve the status quo by maintaining a less polluted

state should not carry the burden of proof, and the party who wants to alter it must bear this

burden.

The Precautionary Principle suggests that where there is an identifiable risk of serious or

irreversible harm, including, for example, extinction of species, widespread toxic pollution in

major threats to essential ecological processes, it may be appropriate to place the burden of

proof on the person or entity proposing the activity that is potentially harmful to the

environment.”[lix].

In Narmada Bachao Andolan v. Union of India[lx], the Court was called upon to decide

various legal questions arising from the Sardar Sarovar Project involving the construction of

a dam on the Narmada River. An environmental clearance had been given for the project. At

the time it was granted there was no obligation to obtain any statutory clearance and hence the

environmental clearance granted was essentially administrative in character. Nevertheless, the

environmental clearance was challenged. It was alleged the necessary particulars in regard to

the environmental impact of the Project were not available when the environmental clearance

was given and it therefore could not have been given[lxi]. It was further alleged that the

execution of the Project, having diverse and far reaching environmental impact, without
29
proper study and understanding of the environmental impacts and without proper planning of

mitigative measures, was a violation of fundamental rights of life of the affected people

guaranteed under Article 21 of the Constitution of India[lxii]. In the course of judgment, the

majority noted the submission of the petitioners that “in cases pertaining to the environment,

the onus of proof is on the person who wants to change the status quo and, therefore, it is for

the respondents to satisfy the Court that there will be no environmental degradation”[lxiii].

The majority dealt with this argument of shifting of the burden of proof and the precautionary

principle stating:

“It appears to us that the ‘precautionary principle’ and the corresponding burden of proof on

the person who wants to change the status quo will ordinarily apply in a case of polluting or

other project or industry where the extent of damage likely to be inflicted is not known. When

there is a state of uncertainty due to lack of data or material about the extent of damage or

pollution likely to be caused then, in order to maintain the ecology balance, the burden of

proof that the said balance will be maintained must necessarily be on the industry or the unit

which is likely to cause pollution. On the other hand where the effect on ecology of

environment of setting up of an industry is known, what has to be seen is that if the

environment is likely to suffer, then what mitigative steps can be taken to off set the same.

Merely because there will be a change is no reason to presume that there will be ecological

disaster. It is when the effect of the project is known then the principle of sustainable

development would come into play which will ensure that mitigative steps are and can be

taken to preserve the ecological balance. Sustainable development means what type or extent

30
of development can takeplace which can be sustained by nature/ecology with or without

mitigation”[lxiv].

Precautionary Principle in American Law

The United States has not adopted precaution as an explicit basis for environmental policy,

even though it has ratified the Rio Declaration on Environment and Development, which

obliges nations to exercise the precautionary principle. Nonetheless, precaution has been

articulated in some US environmental law and early court interpretations[lxv].

Although the United States had not expressly cited the precautionary principle in federal laws

or policies, its presence is evident in several federal environmental statutes:[lxvi]

Under the U.S. Toxic Substances Control Act, the Environmental Protection Agency (EPA)

may halt the marketing of a new substance and requires safety testing or other measures if the

agency determines that the substance may present an unreasonable risk or if exposures are

predicted to be significant.

As a precautionary measure, the Food and Drug Administration requires all new drugs to be

tested before they are put on the market.

National Environmental Policy Act is precautionary in two ways: 1) It emphasizes foresight

and attention to consequences by requiring an environmental impact assessment for any

federally funded project, and 2) it mandates consideration of alternatives including a “no-

action” alternative. NEPA is one of the best national examples of precautionary action. The

National Environmental Policy Act requires that any project receiving federal funding and
31
which may pose serious harm to the environment undergo an environmental impact study,

demonstrating that there are no safer alternatives.

The Clean Water Act established strict goals in order to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.

The Occupational Safety and Health Act (OSHA) was designed to “assure so far as possible

every working man and woman in the Nation safe and healthful working conditions.

Moreover, in 2003, San Francisco became the first local government in the US to adopt an

ordinance outlining the precautionary principle.[lxvii] The San Francisco ordinance requires

officers, boards, commissions and departments to implement the precautionary principle,

which has five elements: anticipatory action, right to know, alternative assessment, full cost

accounting and participatory decision process.

. Concluding Remarks

Apart from being a part of the environmental protection instruments,

Precautionary Principle has also become a crucial part of the Public

International Law. With the law gaining significant momentum in the

sphere of sustainable development, it is only inevitable that concept such

as these is accepted by all the nations. Precautionary Principle, a

32
fundamental element of sustainable development has been discussed

much in the legal context, but improvements are still needed in

implementation. Many countries still do not follow such principles

because they believe that it’ll add to unnecessary expenditures and cost,

to react proactively, without any concrete data. They believe in relying

upon conclusive data to formulate plans and policies. This is done with

the view that when plans and policies are made on the basis of conclusive

data, they are at their optimal level.

Judiciary plays an immense role in linking the law with the concept of

sustainable development. So, it is vital that the judiciary also supports

this kind of approaches. The support of the judiciary is required so that

protection of environment gets a legal sanctity. As an offshoot of legal

recognition, the Precautionary Principle was also adopted by the National

Environmental Policy as a guiding principle. However, there is still a

long way to go for the Precautionary Principle to gain its rightful place in

the field of environmental law. And till it does not get its rightful place,

it will be very difficult to implement it.

33
[1]

http://www.lumes.lu.se/database/alumni/04.05/theses/rabbi_deloso.pdf

[2] http://coe.mse.ac.in/dp/Precaution-Kavi.pdf

[3] 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).

[4]

http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l7

21754/speech_10jan06_preston.pdf

[5] Principle 15 of Rio Declaration.

[6] Vienna Convention for the Protection of the Ozone Layer: Preamble.

[7] Montreal Protocol on Substances that Deplete the Ozone Layer: Paras

6 and 8.

34
[8] Second North Sea Conference Ministerial Declaration, 1987: Articles

VII, XV(i) and XVI,

http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l7

21754/speech_10jan06_preston.pdf

[9] Convention on the Protection of the Marine Environment of the

North–East Atlantic: Article 2(2) (a). This Convention is not yet in force.

[10] Bergen Ministerial Declaration on Sustainable Development in the

Economic Commission for Europe Region: para 7.

[11] Bamako Convention: Article 4(3) (f).

[12] Helsinki Convention on the Protection and Use of Transboundary

Watercourses and International Lakes: Article 2(5) (a).

[13] AIR 1996 SC 2715.

[14] (1997) 1 SCC 388.

[15] AIR 1999 SC 812.

[16] AIR 2000 SC 375

35
Analysis and conclusion.

Bibliography

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