The legislator has anchored the precautionary principle as a legal provision in environmental law through various regulations, clarified it and implemented it as an instrument. At the same time, it has created the necessary legal basis for the State to interfere with the rights of individuals when exercising precautionary measures. Examples of explicit implementation include: If the environmental damage has already occurred, the only option is to remedy it with subsequent remedial action. When there is a risk to the environment, i.e. when environmental damage is sufficiently likely to occur, the safety principle requires that it be avoided. The precautionary principle goes even further: environmental hazards must not arise in the first place. The precautionary principle therefore encourages us to act in a timely and forward-looking manner in order to avoid environmental pollution. Unlike the precautionary principle, risk-based decision-making requires a certain degree of proof of risk before implementing management strategies. For risk-based decisions, the risk management effort is proportional to the level of risk demonstrated. The successful implementation of risk-based decision-making depends on the strength of the scientific evidence base and sufficient expertise to properly analyze and interpret this information. New tools, including expert consensus research tools such as the Delphi method and meta-analysis, are often used in conjunction with traditional risk management decision-making techniques.
The limitations of this approach are largely related to the difficulties in defining the strength of the evidence required, as well as potential delays in risk management as the scientific evidence required for risk-based action accumulates. In 1985, the Vienna Convention for the Protection of the Ozone Layer provided for the recognition by Contracting Parties of the precautionary measures taken. This recognition was extended in 1987 when the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer declared their determination to protect the ozone layer by « taking precautionary measures to control equitably global emissions of substances that deplete them ». Today, the Montreal Protocol is considered one of the most effective multilateral environmental agreements. « Where there is a risk of serious or irreversible damage, lack of full scientific certainty shall not be used as an excuse to delay cost-effective measures to prevent environmental damage. » [Rio Declaration on Environment and Development, Principle 15, UN Doc. A/CONF. 151/26 (12 August 1992)]. EU environmental principles work together to ensure high environmental standards by dictating how judges and other decision-makers should interpret the law. A petition filed on 17 May 2013 by the environmental group Greenpeace Southeast Asia and the farmer-scientific coalition Masipag (Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura) asked the Court of Appeal to stop growing Bt eggplants on test fields, as the impact of such an undertaking on the environment, native plants and human health is still unknown.
The Court of Appeal allowed the motion, invoking the precautionary principle: « If human activities may result in a threat of serious and irreversible environmental damage that is scientifically plausible but uncertain, measures must be taken to avoid or reduce the threat. » [37] The defendants filed a motion for review in June 2013, and on September 20, 2013, the Court of Appeal decided to uphold their May decision that the field trials violated the people`s constitutional right to a « balanced and healthy ecology. » [38] [39] On December 8, 2015, the Supreme Court permanently suspended field trials for Bt talong (Bacillus thuringiensis) (eggplant), upholding the Court of Appeal`s decision to stop field trials of genetically modified eggplant. [40] The Court is the first in the world to adopt the precautionary principle for GMO products in its decision. The Supreme Court`s decision was later overturned following an appeal by researchers at the University of the Philippines Los Baños. [41] The precautionary principle, in its simplest form, is a modern reformulation of the classic Hippocratic oath « I will save them from evil and injustice, » often summarized as « first, do no harm. » However, the « precautionary principle » is more than a saying for individual action; On the contrary, it should guide the behaviour of institutions and nations. And unlike the Hippocratic Oath and its modern counterparts, it applies to both human health and the environment. There are many definitions of the precautionary principle: precaution can be defined as « caution in advance », « caution in an uncertain environment » or an informed warning. Two ideas are at the heart of the principle:[14]:34 If you decide to leave your home or office, you should take precautions, which is one of the expressions of the precautionary principle. To make this example less theoretical, this precaution also applied to decision-makers concerned about the potential impact of COVID-19 in early 2020. When news of the emergence of this new strain of coronavirus reached the authorities, there was not enough information about its impact. It would be fair to say that in January 2020, it was hard to imagine the global impact of the virus. However, there was enough data on similar viruses to make the decisions governments would have to make. The precautionary principle is a cost-effective way to minimize pollution and damage.
If we view progress as something inherently risky, then risks should be encouraged. Otherwise, constant caution leads to fewer decisions and less progress. On the other hand, the risk of future damage can always bring some degree of uncertainty, and caution when evaluating a stock can be a wise choice. The ideal is to find a balance between caution and risk. In this sense, the precautionary principle serves as an instrument that contains the necessary elements to achieve this balance: instead of slowing down development or hindering decision-making, its application encourages reflection in the face of uncertainty, which undoubtedly leads to better results. The weak version [of the precautionary principle] is the least restrictive and allows preventive measures in the face of uncertainties, but does not require them (e.g. Rio Declaration of 1992; United Nations Framework Convention on Climate Change 1992). To reach the injury threshold, there must be indications of both the probability of occurrence and the severity of the consequences. Some, but not all, require consideration of the cost of safeguards. Weak formulations do not prevent a trade-off between benefits and costs. Factors other than scientific uncertainties, including economic considerations, may be legitimate grounds for postponing action.
In the case of weak wording, the requirement to justify the need for action (burden of proof) usually falls on those advocating precautionary measures. There is no mention of attribution of liability for environmental damage. Strong versions justify or require precautionary measures, and some also establish liability for environmental damage, which is effectively a strong form of the polluter pays principle. For example, the Earth Charter states: « If knowledge is limited, apply a precautionary approach. Place the burden of proof on those who argue that a proposed activity will not cause significant harm and hold those responsible for environmental damage. The refutation of the evidence requires persons proposing an activity to demonstrate that the product, process or technology is sufficiently « safe » before approval is granted. Proving « no environmental harm » before a measure is implemented implies that the public is unwilling to accept an environmental risk, regardless of the economic or social benefits that may result (Peterson, 2006). In extreme cases, such a requirement could include the prohibition of entire categories of potentially hazardous activities or substances (Cooney, 2005). Over time, the precautionary principle has gradually shifted from what appears in the Rio Declaration to a stronger form, which arguably acts as an obstacle to development in the absence of clear evidence that it will not cause harm. [25] Alam, S., Atapattu, S., Gonzalez, C. G. & Razzaque, J.
(eds.). (2015). International Environmental Law and the Global South. Cambridge University Press. Sands, P. & Peel, J. (eds.). (2012). Principles of International Environmental Law, Third Edition.
Cambridge University Press. The PP has its roots in the early 1970s as a German precautionary principle. Since the 1980s, several international treaties have approved precautionary measures, such as the 1987 treaty, which prohibits the discharge of toxic substances into the North Sea. An important and influential statement of PP is principle 15 of the 1992 Rio Declaration on Environment and Development. It states that « where there is a threat of serious or irreversible damage, lack of full scientific certainty shall not be used as a pretext for postponing the adoption of cost-effective measures to prevent environmental damage ». In particular, the precautionary principle gives the State the legal authority to deal with situations of uncertainty and ensures that the State is also able to act in such situations. It can legitimize or even require state action to protect the environment. In situations of uncertainty, the impact of a measure on the environment cannot be conclusively assessed due to uncertainty or incompleteness of current scientific knowledge, but the available evidence is of concern.