The Precautionary Principle
Chapter Forty-Five
Syllabus topic 2, "Sustainable Development."
Pages 132 to 134 of 663
In one line
Where the harm could be serious and the science is not certain, you act anyway, and in India the principle has been turned into a rule about who bears the burden of proof.
In exam wording: the precautionary principle, stated in Principle 15 of the Rio Declaration 1992, is that in order to protect the environment the precautionary approach shall be widely applied by States according to their capabilities, and that 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.
Why the law needed it
Because the ordinary structure of legal proof fails for environmental harm. A claimant must normally prove damage and causation. In an environmental case the damage may appear twenty years later, the causal chain may involve a hundred contributors, and the science may be genuinely unsettled at the time the decision has to be made.
If the law waits for proof, it acts only after the harm is done, and for irreversible harm that is too late. Precaution is the technique that lets a decision be taken under uncertainty.
The elements
Read Principle 15 carefully and it has four elements, each doing work.
- A threat of damage. Not a certainty, and not a fantasy either. There must be a plausible risk supported by some scientific basis.
- Serious or irreversible. Both words matter. Irreversibility is what makes waiting unacceptable, because the option to act later disappears.
- Lack of full scientific certainty is not a reason to postpone. This is the operative sentence.
- Cost-effective measures, according to their capabilities. The principle does not require any measure at any price. This is the qualification most students omit and it is the reason many States accept the "approach" and not the "principle".
Principle or approach
The distinction is real and examinable.
| Precautionary approach | Precautionary principle | |
|---|---|---|
| Used by | Rio Declaration; the Framework Convention article 3, paragraph 3; the Fish Stocks Agreement | Some regional treaties; the Supreme Court of India |
| What it requires | Uncertainty must be taken into account in the decision | Uncertainty shifts the burden onto the proponent |
| Status | Widely accepted | Contested as custom |
International instruments overwhelmingly say "approach". Indian law says "principle" and gives it the stronger effect. An answer should say which is which.
The Indian form: burden of proof
Facts. A.P. Pollution Control Board (II) v. Prof. M.V. Nayudu (Retd.), (2001) 2 SCC 62. A company proposed a vegetable oil plant in the catchment area upstream of two reservoirs supplying drinking water to Hyderabad and Secunderabad. The State Government exempted it, by a Government Order of 3 July 1997, from the rule keeping polluting industries out of the catchment.
The Precautionary Principle
Held. The exemption was struck down. An exemption granted carelessly, ignoring the precautionary principle, could be catastrophic; the Government Order had no statutory backing, was wholly arbitrary and violated Article 21. Restating the Court's earlier judgment in the same litigation, reported at (1999) 2 SCC 718, the Court held that the precautionary principle carries a new rule of burden of proof: it was for the industry to establish that there would be no danger of pollution to the two reservoirs, and courts require scientific inputs before adjudicating complicated questions of pollution, which is the reason for expert environmental tribunals.
Why it matters here. This is the Indian operative form of the principle, and it is stronger than the international formulation. In India the proponent proves safety; internationally, uncertainty is merely not an excuse for delay.
Where the principle is written into treaties
| Instrument | Provision | Form |
|---|---|---|
| Framework Convention on Climate Change 1992 | Article 3, paragraph 3 | Approach, with cost-effectiveness |
| Convention on Biological Diversity 1992 | Preamble | Where there is a threat of significant reduction of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures |
| Fish Stocks Agreement 1995 | Articles 5 and 6 | Approach, with reference points and precautionary rules |
| London Protocol 1996 | Article 3, paragraph 1, and the reverse list in Article 4 | The strongest structural expression: everything prohibited except what is listed |
| Stockholm Convention on Persistent Organic Pollutants 2001 | Preamble and Article 8, paragraph 9 | Precaution in listing decisions |
| National Green Tribunal Act 2010 (India) | Section 20 | The Tribunal shall apply the principle |
The London Protocol is the one to name if asked for the principle made structural. Reversing the list from "these things may not be dumped" to "nothing may be dumped except these" puts the burden on whoever wants to dump.
Worked example
A company proposes an aquaculture project in an estuary. Objectors say it will destroy a seagrass bed on which a fishery depends. The science on the effect is genuinely unsettled.
- Ordinary approach. Objectors must prove the harm. They cannot, because the science is unsettled. The project proceeds.
- Precautionary approach. The regulator must take the uncertainty into account; it may impose conditions, monitoring, or a staged approval.
- Precautionary principle, Indian form. The proponent must satisfy the regulator that the project will not damage the seagrass. If it cannot, permission is refused.
The three answers are different and the difference is the whole content of the principle.
Criticism, which belongs in a full answer
It can prove too much. Every activity carries some risk, so a strong reading would forbid everything. The answer is the threshold: serious or irreversible damage, on a plausible scientific basis.
The Precautionary Principle
It can be captured. A demand for proof of safety is also a tool for excluding a competitor's product. Rio Principle 12's warning against disguised restrictions is the discipline.
It has no stopping rule. How much precaution is enough? The formulation answers with "cost-effective measures according to their capabilities", which is honest and imprecise.
Quick revision
- Rio Principle 15; four elements: a threat, serious or irreversible, uncertainty no excuse, cost-effective according to capability.
- Approach in international instruments; principle, with a shifted burden of proof, in India.
- A.P. Pollution Control Board (II) v. Prof. M.V. Nayudu (Retd.), (2001) 2 SCC 62. The roman numeral in the name matters: there is an earlier judgment between the same parties, which this one restates, and the two are separate decisions. This book has read and cites only the later one.
- Section 20 of the National Green Tribunal Act 2010 requires the Tribunal to apply it.
- The London Protocol's reverse list is the principle made structural.
Test yourself
1. State Principle 15 and identify its qualification. 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. The qualification is that the measures must be cost-effective and applied according to States' capabilities.
2. What is the Indian operative form of the principle? A rule of burden of proof: the person proposing the activity must establish that it will not cause environmental damage.
3. Which treaty expresses precaution structurally rather than by words, and how? The 1996 London Protocol. Article 4 reverses the list, prohibiting all dumping except of substances specifically permitted, so the burden falls on whoever wants to dump.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.