Abstract
Human society is preoccupied with change. Threatened and stimulated, we see the inevitability of change as a challenge upon which our survival as a species depends as well as our apparent supremacy. In this stressful and complex world certainty recedes with knowledge — the more we know the less we know and the harder it is to be told. In world of politics and law, rational decision-making is customarily based on varying, degrees of particular forms of certainty associated with the notion of proof. When we are uncertain we politically paralysed. Too often, our experience in matters relating to the environment indicates that when we are certain we are impotent — it is too late to repair the damage.
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Notes
See Cameron, J., Abouchar, J., “The Procautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment”, Boston College International & Comparative Law Review, Vol. XIV, No. 1., Winter 1991.
O’Riordan, T. (1992) “The Precaution Principle in environmental Management”, Centre for Social Economic Research on the Global Environment, GEC 92–03. See also von Moltke, K., “The Vorsorgenprinzip in West German Policy,” Royal Commission on the Environment, 12th Report, Appendix 3, 1988. Legislative references of the Vorsorgenprinzip include Bundesimmissionsschutzgestz (Federal Emission Control Act); the Atomgesetz 9 (Nuclear Energy Act), art 7, note 2, no 3; and the Gesetz über die Umweltvertraglichkeitsprufung (Environmental Impact Assessment Act).
For a useful summary review of references to the principle, see Hey, E., “The Precautionary Approach and the LDC”, paper prepared for the Secretariat of the LDC, August 1991, LDC 14/4, 4 September 1991. See also 20 Environmental Law and Policy, No. 3; and Freestone, D., “The Precautionary Principle”, Ch. 2 in Freestone & Churchill (eds), “International Law and Global Climate Change” (Graham & Trotman/Martinus Nijhoff, 1991).
U.N. Secretary-General, Annual Report on the Law of the Sea, November, 1990, UN Doc. A/45/721, cited in Freestone, D., “International Law and Sea Level Rise, Ch. 7 of Freestone & Churchill, supra note 3.
See for instance Handl, G., “Environmental Security and Global Change: the Challenge to International Law”, in Handl (ed) 1 Yb. Int’l Env.L. (1990). See also Gundling, L., “The Status in International Law of the Precautionary Principle”, International Journal of Estuarine and Coastal Law, Vol. V, Ch. 3, 1990, and Nollkaemper, A., “The Precautionary Principle in International Environmental Law: What’s New Under the Sun?”, Marine Pollution Bulletin, Volume 22, No. 3, March 1991.
Second International Conference on the Protection of the North Sea, London, 24–25 November 1987, Ministerial Declaration, issued by the Department of the Environment of the United Kingdom, April 1988.
Baltic Sea Declaration, adopted at Baltic Environment Conference held at Ronneby (Sweden) 2–3 September 1990, IMO Doc. MEPC 30/22/5, Annex. The text is given in 1 Yb. Intl. Env.L. (1990), pp. 423–429.
Title XVI, Article I30r, section 2 of the Treaty of Rome as amended by Title II of the Treaty on European Union signed in Maastricht on February 7, 1992. The Maastricht agreement has not yet been ratified by all the signatories. At the date of writing, Denmark has decided, by referendum, not to ratify.
Directive 90/219, Council Directive of 23 April 1990 on the contained use of genetically modified micro-organisms, O.J. LI17/1 (1990), and Directive 90/220, Council Directive of 23 April 1990 on the deliberate release into the environment of genetically modified organisms, O.J. LI17/15 (1990).
Preamble, paragraph 6 of the Montreal Protocol on Substances that Deplete the Ozone Layer, as amended at the Second Meeting of the Parties to the Montreal Protocol, London 27–29 June 1990, Doc. UNEP/Oz.L.Pro2/3, Annex II, p. 25. Text in 1 Yb. Int’l. Env.L. (1990) pp. 591–657. See also Adjustments and Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer, 30 International Legal Materials 1991, pp. 537–554.
Recent Consultative Meetings of the Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter [hereinafter, the London Dumping Convention] provide one illustration of this. See for instance paragraphs 4.1–4.19 and Annex 2 of the Report of the Fourteenth Consultative Meeting, 25–29 November 1991, LDC 14/16 30 December 1991. Additionally, the Oslo and Paris Commissions are currently reviewing their conventions; in both cases, the precautionary principle is listed in the reviews’ terms of reference. See Hey, E., “The precautionary approach: Implications of the revision of the Oslo and Paris Convention” Marine Policy 15, July 1991, pp. 244–254. See also the “Report on the Activities of the Oslo Commission”, submitted by the Oslo Commission Secretariat to the Fourteenth Consultative Meeting, LDC 14/Inf.21, 4 November 1991.
See in particular the Comments on the Secretariat Paper LDC 14/4, submitted by the United States to the Fourteenth Consultative Meeting of the London Dumping Convention, LDC 14/INF.23, 4 November 1991. This argues that “the Convention, in its present form, incorporates a precautionary approach to ocean dumping,” and that “it is largely because the Convention employs such an approach that it is unclear how express adoption of a precautionary approach would change decision-making under the LDC.”
For the various national permutations of the Second North Sea Conference Ministerial Declaration, see Cameron and Abouchar, pp. 4–8, supra note 1.
International Maritime Organization: International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990, and Final Act of the Conference, done at London, November 30, 1990, 30 I.L.M. 733 (1991).
European Economic Community-France-Morocco-Portugal-Spain: Final Acto of the Conference for the Protection of Coasts and Waters of the North-East Atlantic Against Pollution due to Hydrocarbons or Other Harmful Substances, and Accord of Cooperation, done at Lisbon, October 17, 1990, 30 I.L.M. 1227 (1991).
Report by the OECD Secretariat, “The Role of Uncertainty in Decision-Making in the Area of Environmental Protection”, ENV/EC/ECO(91)12. This was made available to Parties to the London Dumping Convention as “Dealing with uncertainty”, LDC 14/INF.9, 10 October 1991.
Code of Conduct on Accidental Pollution of Transboundary Inland Waters as adopted by the Economic Commission for Europe at its 45th session (1990) by decision c.45, Doc. E/ECE/1225; ECE/EN V W A/ 16, Section III.7.
The consensual scientific view is contained in the First Assessment Report of the Intergovernmental Panel on Climate Change, and its February 1992 Supplement. As the latter stresses (p. 6): Findings of scientific research since 1990 do not affect our fundamental understanding of the science of the greenhouse effect and either confirm or do not justify alteration of the major conclusions of the first IPCC Scientific Assessment...
The seriousness with which potentially-affected parties are reacting to this threat is evident in, inter alia, the Malé Declaration on Global Warming and Sea Level Rise (reprinted in Molitor, Michael, R., “International environmental law: primary materials”, 1991), the Fourth South Pacific Regional Environment programme Ministerial Intergovernmental Level Meeting: Ministerial Declaration on Environment and Development, Noumea (New Caledonia), 9 July 1991 (UN Doc.A/CONF.151/PC/87, Annex), and in the Symposium on Climate Change and the Future of Small Island states and Low-lying Coastal Developing Countries, New York, 14 February 1992. A summary of the latter was submitted to the Fifth Session of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, as INC/FCCC/None No. 37, 27 February 1992. Working Group I of the IPCC (Science) has estimated a 65 cm rise in sea-level by the end of the next century, given the assumptions of IPCC Scenario A (Business as Usual). Working Group II (Impacts) estimates the rise at between 30 and 50 cm by 2050, and about 1 m by 2100. See also, “Possible adverse effects of sea level rise on islands and coastal areas, particularly low-lying coastal areas”, Report by the UN Secretary-General to the General Assembly at its 46th Session, Doc. A/46/156, 19 April 1991.
“Climate Change and the Future”, Keynote Address by D. De St. Jorre, Minister for Planning and External Relations, Republic of Seychelles, to the Symposium on Climate Change and the Future of Small Island States. This is reprinted in the summary of that meeting, supra note 40.
On the implications of feedbacks, see Leggett, J., “The New Politics of Energy”.
Cited in Hey, “The Precautionary Approach and the London Dumping Convention”, p. 16, supra note 3.
World Charter for Nature, G.A. Res 37/7, GAOR, Thirty-Seventh Sess. Supp. No. 51 (A/37/51).
See UNEP, supra note 14.
Statement to the General Assembly of Global Legislators Organization for a Balanced Environment (GLOBE) by H.E. Mr. Renagi R. Lohia, OBE, Permanent Representative of Papua New Guinea to the United Nations, on behalf of the Alliance of Small Island States, Washington D.C., 3 February 1992.
See, inter alia, the Final Ministerial Declaration of the Second World Climate Conference, supra note 12.
For instance, the Montreal Protocol talks of “taking precautionary measure… taking into account technical and economic considerations...” (supra note 15).
Houston Economic Declaration of the Seven Major Industrialized Democracies, paragraph 62, 11 July 1990. In an address to the National Governors Association in Washington D.C. (26 February 1990), US Secretary of State James Baker explained that “no regrets” implied that: … while the United States continues to support scientific research into the greenhouse effect, [we] are prepared to take actions that are fully justified in their own right and which have the added advantage of coping with greenhouse gases. They’re precisely the policies [we] will never have cause to regret. He noted further that the doctrine of “no regrets” would provide support for “actions which make economic and environmental sense regardless of the outcome of scientific disputes over causes and effects.”
Thus the Paris Commission recommendation 89/1. 22 June 1989, reads: [T]he contracting parties… [accept] the principle of safeguarding the marine ecosystem of the Paris Convention area by reducing at source polluting emissions of substances that are persistent, toxic and liable to bioaccumulate by the use of the best available technology and other appropriate measures.
One relevant standard here is that of “best available technology not entailing excessive cost.” See pp. 20–21 of O’Riordan, supra note 2.
A greenpeace poll of world climate scientists conducted during December 1991 and January 1992 shows that 45% of those surveyed believed a runaway greenhouse effect is possible if action is not taken to cut greenhouse gas emissions. Some 13% of those surveyed thought such an effect probable. The 400 scientists polled included all those involved in the 1990 IPCC report, as well as others who have published on issues relevant to climate change in “Science” or “Nature” during 1991 (Greenpeace International, Press Release, United Nations, New York, 20 February 1992).
O’Riordan, T., “The Precaution Principle in Environmental Management”, CSERGE paper, supra note 2, pp. 25–26. See also p. 23 for a game theoretical illustration of the linkages between science, economics, politics, as well as precautionary and non-precautionary responses to environmental threats.
Indeed, one potential precautionary procedure would be some form of insurance mechanism to compensate affected parties for externally caused environmental degradation. Such a scheme has been advance, for instance, in the context of possible sea-level rise. For further details, see Section 3.2.3b.
For a more general argument to the same effect, see Sands, P., “The Environment, Community and International Law”, Harvard Journal of International Law, Vol. 30, No. 2, Spring 1989.
Final Ministerial Declaration, The Hague, 8 March 1990, p. 4. The entire document is reproduced in 1 Yb. Int’l Env.L. (1990), pp. 658–91.
Gray, J.S., “Statistics and the precautionary Principle”, Marine Pollution Bulletin, Volume 21, No. 4, pp. 174–176, 1990. See also Johnston, P. & Simmonds, M., “Reply to Gray”, Marine Pollution Bulletin, Volume 21, No. 8, p. 402, 1990; and Gray’s subsequent rejoinder to this in Marine Pollution Bulletin, Volume 21, No. 12, pp. 559–600, 1990.
Kuhn, T.S., “The Structure of Scientific Revolutions” (University of Chicago Press, 1970) p. 86. See also pp. 1–11 and pp. 82–86.
Jackson, T. & Taylor, P.J., “The Precautionary Principle and the Prevention of Marine Pollution,” 1991, pp. 1–2.
OECD, “The Role of Uncertainty in Decision-Making in the Area of Environmental Protection”, p. 5, supra note 36.
Bergen Conference, “Joint Agenda for Action”, May 11, 1990, pp. 2 and 13. This document resulted from a series of collaborative NGO/governmental workshops held as a part of the Bergen process. It claims that it “represents a common view of representatives of Governments, business, voluntary environmental organizations, youth, science and labour on proposals to promote sustainable development which merit discussion, consideration or decisions by the various partners in the Bergen process, either jointly or separately” (p. 1). Jackson and Taylor, pp. 6–7, supra note 69.
Sperling, K.R., “Protection of the North Sea” Balance and Prospects“, Marine Pollution Bulletin, Volume 17, No. 6, pp. 241–246, 1986. See also Sperling, K.R., ”The Dangers of Risk Assessment Within the Framework of the Marine Dumping Conventions“, Marine Pollution Bulletin, Volume 19, No. 1, pp. 9–10, 1988.
Skolnikoff, Eugene B., “The Policy Gridlock on Global Warming” Foreign Policy, Summer 1990, p. 83.
Greenpeace International, Critical Review of GESAMP Reports and Studies No. 45 on Global Strategies for Marine Environmental Protection (1991), LDC 14/INF.29, 22 November 1991, p. 2.
Dewey, John, “The Public and Its Problems: An Essay in Political Inquiry” (Chicago, 1927), cited in Parson and Clark.
Parson, Edward, A. & Clark, William, C., “Learning to Manage Global Environmental Change: A Review of Relevant Theory”, CSIA Discussion Paper 91–13, Kennedy School of Government, Harvard University, December 1991, p. 5. Note especially their sections 4.4 (Learning in Science) and 4.5 (Learning in Policy-Making), pp. 19–23. This paper provides an extremely useful review of learning theory, together with a comprehensive bibliography.
“The prior justification procedure is a most rigorous application of the precautionary principle in that it places the burden of proof on the application to demonstrate that no harm will be caused to the marine environment.” Freestone, p. 25, supra note 3.
Olson, supra note. See especially pp. 898–99. Olson also provides a detailed accounting of where the burden of proof has begun to shift within domestic US environmental law.
Treaty of Rome, Article 130r, section 2, as amended by the Single European Act, O.J., 1987, L.169, pp. 1–5.
See Hey and Oslo Convention Secretariat Report, supra note 16.
See especially Articles 2–4. The entire CRAMRA text is reproduced in 27 I.L.M. 859 (1988).
See, for instance, Article 37 of the Fourth ACP-EEC Lome Convention, 15 December 1989, reprinted in 29 I.L.M. 809 (1990).
See the North Sea Continental Shelf Cases (West Germany v. Netherlands; West Germany v. Denmark), 1969 I.C.J. 3, 43–44.
See Hey, supra note 3; and Cameron & Werksman, supra note 80.
See Bin Cheng, “United Nations Resolutions on Outer Space: Instant International Customary Law”, 5 Indian Journal of International Law 23 (1965). See also Cheng, “Custom: The Future of General State Practice in a Divided World”, in Johnston and MacDonald, “The Structure and Process of International Law” 513 (1983); Kunz, “The Nature of Customary International Law”, 47 American Journal of International Law 662, 666 (1953); Tunkin, “Remarks on the Juridical Nature of Customary Norms of International Law”, 49 California Law Review 419 (1961).
Christol, C., “The International Law of Outer Space” 134 (1962). The International Geophysical Year lasted from July 1, 1957, through December 31, 1958.
Article 38.1 of the Statute of the International Court of Justice lists as a final source of international law, “judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law.”
Louise de La Fayette, review of Freestone & Ijlstra (eds), “The North Sea: Perspectives on Regional Environmental Cooperation” (Graham & Trotman, 1990), in Netherlands International Law Review, Vol. 38, pp. 73–79, 1991.
McDougal, Myres, S. & Reisman, W. Michael, “The Prescribing Function in World Constitutive Process: How International Law Is Made”, Yale Studies in World Public Order, Volume 6, Number 2, Spring 1980, pp. 249–284. See also Reisman, “International Lawmaking: A Process of Communication”, Harold, D. Lasswell Memorial Lecture, Washington D.C., 24 April 1981, in “Order, Freedom, Justice, power: The Challenges for International Law”, Proceedings of the 75th Anniversary Convocation of the American Society of International Law, 1981.
Compare Reisman’s informative example of the prescriptive emergence of the various unclear testing regimes; Reisman, ibid, pp. 114–119.
This is how we would characterize the “no regrets” doctrine. It clearly seeks to capture the political force of precautionary language, since it is portrayable as a more activist response to prevailing uncertainties than a pure research strategy. At the same time, as Section 1.5.2 demonstrates, the conceptual and procedural differences are evident enough.
U.S. submission to the Fourteenth Consultative Meeting of the London Dumping Convention, supra note 77.
Resolution 687 (1991), Adopted by the Security Council at its 2981st meeting, on 3 April 1991, UN Doc. S/RES/687 (1991), 8 April 1991, Sections E.16-E.19.92.
See especially the far-reaching Nordic Convention on the Protection of the Environment, Stockholm, 19 February 1974, 13 ILM 591 (1974). See especially Article 3.
See Collins, L. “European Community Law in the United Kingdom” (1984), pp. 34–52. For cases
see, inter alia, Case 152/84, Marshall v. Southampton and South-West Hampshire Area Health Authority, [1986] E.C.R. 723, 1 C.M.L.R. 688; Case 222/84, Johnson v. Chief Constable of the Royal Ulster Constabulary, [1986] E.C.R. 1651, 3 C.M. L.R. 240; Case C/188/89, Foster v. British Gas, [1990] E.C.R._, 2 C.M.L.R 833.
Furthermore, the European Court has extended the concept of direct effect to cover certain agreements between the Community and third party states. See Hauptzollampt Mainz v. CA Kupferberg & CIE KG, Case 104/81, [1982] E.C.R. 2641. See also Collins, ibid, p. 51.
Fuhr, Ormond, Roller & Gebers, Agenda for the Workshop “Access to Justice”, Brussels, March 6, 1992, pp. 3–6. DG XI commissioned a report to advise in the drafting of the Access to Justice in Environmental Matters directive from the above authors and James Cameron.
EEA was established together with the European Environment Information and Observation Network by Regulation 1210/90, Council Regulation of May 1990, O.J. 1210.1 (1990). Supra note 119.
See Chayes & Skolnikoff, “A Prompt Start: Implementing the Framework Convention on Climate Change”, Report from the Bellagio Conference on Institutional Aspects of International Cooperation on Climate Change, 28–30 January 1992, circulated at the Fifth Session of the INC. This advocates an institutional strategy that “reflect[s] the overriding importance of transparency in international environmental regimes”, p. 9.
U.N. Framework Convention on Climate Change Article 12, see also Article 4(1) (a)&(b). See, inter cilia, Krasner, E. (ed), “International Regimes” (Ithaca: Cornell University Press, 1983); Haggard & Simmons, “Theories of International Regimes”, International Organization 41 (1987), pp. 491–517; Keohane, R.O., “After Hegemony: Cooperation and Discord in the World Political Economy” (Princeton University Press, 1984).
For this view see Strange, S., “Cave! Hic Dragones: A Critique of Regime Analysis”, pp. 337–54 in Krasner, supra note 116. For the classical realist and neo-realist foundations of this sceptical view see, respectively, Morgenthau, H.J., “Politics Among Nations: The Struggle For Power and Peace (5th edition, New York; Knopf, 1978), and Waltz, K., ”Theory of International Politics“ (1979).
This extreme view is most closely associated with Waltz, supra note 117. For a comprehensive examination of this position, see Keohane, R.O., “Neorealism and its Critics” (New York: Columbia University Press, 1986).
See, for instance, Gilpin, R., “War and Change in World Politics” (Cambridge University Press, 1981), p. 35.
Noordwijk Declaration on Atmospheric Pollution and Climate Change (adopted at the Ministerial Conference on Atmospheric Pollution and Climactic Change, 5–7 November, 19 E.P.L. 229 (1989). Global Environment Change Report, Vol. II, No. 10, 25 May 1990, p. 1.
Following section is based on Global Environmental Change Report, ibid, pp. 1–3. See also The Independent 14 May 1990 (“Doubt can justify action on pollution”), and ECO, 10 May 1990, Number 2, p. 1 (“US memo reveals fierce opposition to the precautionary principle”).
See, inter cilia, Olson, M., “The Logic of Collective Action: Public Goods and the Theory of Groups”, Harvard Economic Studies, Vol. 124 (1971); Schelling, T., “Strategy of Conflict” (Harvard University Press, 1960); Axelrod, R., “The Evolution of Cooperation” (New York, Basic Books, 1984); Oye, D. (ed), “Cooperation Under Anarchy” (Princeton University Press, 1986).
Statements recognizing interdependence, both in academic and international political contexts, abound. Thus, Maurice Strong, UN Doc. A/C.2/SR.1466 (1972):
The essential theme of the modern age is interdependence, the interdependence of all the elements which sustain… life on planet, of man with those elements, of the natural system with man’s needs and aspirations and most of all man with man.
NATO during the Cold War, for instance, constituted a cooperative and expensive endeavour designed to reduce the possibility of a particular event, namely external aggression. The chances of such an event coming about, even in the absence of worst-case preventative measures, were regarded as uncertain, but the costs, were it to do so, were perceived as unacceptably high. The collective action problem was thus resolvable; despite recurrent and acrimonious debates about burden-sharing, cooperation within the membership of the alliance was on the whole maintained. Uncertainties over possible defections from the regime, as well as over the effectiveness of particular cooperative security measures, were perceived to be negligible relative to the high-cost alternatives that non-cooperation might threaten. Free-riding was confined to the margins of an essentially cooperative arrangement.
See especially Axelrod, supra note 135. See also Axelrod and Keohane, “Achieving Cooperation Under Anarchy: Strategies and Institutions” in Oye (ed), supra note 135.
See Haas, P., “Saving the Mediterranean: The Politics of International Environmental Cooperation” (Columbia University Press, 1990).
Allott, P., “International Law and International Revolution” Reconceiving the World“ p. 7. Allott asks: ”Whodunnit? It was Emmerich de Vattel in his study with an idea.“
Allott, “Eunomia: New Order for a New World” (Oxford University Press, 1990), section 16.19, p. 304:
When law becomes not merely the multi-lateralization of individual purpose but the universalization of social purpose, it transcends self-interest and becomes the self-creating of a society.
This, he argues, is a genuine international society, contrasting with what he terms the “phantom international society” which has been generated by a “partial social process… conceived as the interacting of the governmental public realms of the state-societies as units of willing acting, mathematical points with location but without extension...” (16.8). Allott provides a diagrammatic illustration of the “new self-ordering of the new international society,” (16.103) and of the new international law of this latter (16.104). These are reproduced as Figures 1 and 2.
GESAMP (IMO/FAO/UNESCO/WMO/WHO/IAEA/UN/UNEP) 1991: Global strategies for marine environmental protection. Rep. Stud. GESAMP (45).
See Jackson, T., “Waste Reduction and the Prevention of Marine Pollution” Alternatives to the Disposal of Wastes at Sea“, submitted to the Ad Hoc Group of Experts on the Annexes to the London Dumping Convention, 15 January 1990.
See, for instance, the various recent amendments to the Barcelona Convention.
Inter alia, the Michigan Environmental Protection Act, Mich. Comp. Law, 691.1203 (1) (1989); the federal Resource Conservation and Recovery Act, 42 U.S.C. 6972(a)(1) (1982); and section 107 of the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9607 (1982). See James M. Olson, “Shifting the Burden of Proof: How the Common Law Can Safeguard Nature and Promote an Earth Ethic”, Environment Law, Vol. 20, pp. 981–915. See especially pp. 908–909.
Proposal for a Council Directive on civil liability for damage caused by waste, COM (89) 282 final, O.J. C251/3 (1989).
The 1979 UN/ECE Convention on Long-Range Transboundary Air Pollution provides a useful point of contrast, since it expressly states that it “does not contain a rule on State Liability as to damage.”
Thus legal requirements for parties carrying out environmentally-hazardous activities to take out commercially-available private insurance, are not strictly precautionary. It is sometimes argued that, once insured, such parties may lose an incentive to behave in a precautionary fashion, since they will no longer have to meet the financial costs of liability. Thus the 1969 Brussels Convention on Civil Liability for Oil Pollution Damage (text in 9 I.L.M. 45, 1970), which imposes upon bulk carriers of persistent oils the obligation to effect insurance against the liabilities imposed by the Convention, is not precautionary.
See Mans Jacobson, “The International Conventions on Liability and Compensation for Oil Pollution Damage”, in “Oil Pollution Claims and Liability”, Legal Studies and Services Limited, London, November 1989.
See Sands, P., “Chernobyl: Law and Communication” (Cambridge: Grotius, 1988). Paris Convention is laid out at p. 53, and the Brussels supplementary at p. 68.
Council Directive 90/313 EEC of 7 June 1990 on the freedom of access to information on the environment, O.J. 1990 L 158/56.
Sands & Bulatao, “International Procedural Aspects of Atmospheric Protection: Environmental Impact Assessment and Access to Information”, CIEL Background Papers on International Environmental Law, No. 2/1991, January 1991, p. 20.
In June 1990, Environment Ministers from central, eastern and western European governments met in Dublin and agreed to compile a register of pollution problems throughout Europe through the new Agency. See The Observer, 16 June 1990, p. 3; The Independent, 17 June 1990, p. 10.
UNEP Governing Council Dec. 14/25, Goals and Principles of Environmental Impact Assessment, UN Doc. UNEP/GC/.14/17 (1987).
The New Assessment Procedure has been drawn up by the LDC’s Ad Hoc Group of Experts on the Annexes to the LDC. The work was originally undertaken in response to a request by the Parties at the LDC’s Tenth Consultative Meeting to “prepare any recommendations for alternative procedures for the classification and assessment of wastes to be dumped at sea which would afford better protection of the total environment against the adverse impacts of waste.” For an explanation of the NAP’s origins and drafting, as well as the complete text itself, see LDC.2/Circ.266, 19 June 1990. For the Friends of the Earth International critique of the above, see LDC 14/INF.18.
See Oslo Commission Procedures and Decisions Manual, pp. C 3/86-E, 1/10/-8/10; pp. C A/86-E, 1/2–2/2; and pp. C 8/89, 1/5–5/5.
OECD Decision of 1986 on exports from the OECD of hazardous waste, C(86)64(final). Requires, inter alia, that exporters of hazardous waste demonstrate that the waste disposal facilities they intend to use are environmentally safe.
Paragraph 11 of the Final Declaration of the Third International Conference on the Protection of the North Sea.
Agreed at the Seventh Ordinary Meeting of the Contracting Parties to the Barcelona Convention; this particular stipulation related to products containing organophosphorus compounds, and was explicitly linked to the precautionary principle. See LDC 14/INF.15.
OSCOM Decision 89/1 (14 June 1989). Stipulates that a potential discharger of industrial waste not dispose of that waste unless they demonstrate that it is composed of “inert materials of natural origin” that would “cause no harm to the environment.” In addition, discharges are permitted only where there are no “practical alternatives on land.”
Both in Article 4 of the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities. 151 Article 12 of the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, 24 March 1983 (“The Cartagena Agreement”).
PREEPCOMM for International Seabed Authority and for the International Tribunal for the Law of the Sea, supra note. See especially Part VIII, Protection and preservation of the marine environment from unacceptable changes resulting from activities at sea, Articles 104, 105, 108.
Article 11(c) of the United Nations General Assembly Resolution 7 (XXXVII) World Charter for Nature (1982).
Fourth APC-EEC Convention signed in Lome, 15 December 1989, Article 37. Reprinted in 29 I.L.M. 809.
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, 11 ILM 1294 (1972).
Op. Cit. p. 2. Additionally, The Preamble to the NAP p. 1 of the Annex to LDC.2/Circ.266 states that:
Uncertainties in relation to assessments of impacts on the marine environment will need to be considered when applying the NAP and a precautionary approach must be taken to address these uncertainties.
See D’Amato & Chopra, “Whales: their emerging right to life”, 85 American Journal of International Law 21 (1991).
See, for example, the “ecomorality” advanced in Kwisnek, E., “Earth or Consequences? Mythologizing the Earth Entity as a Way to Environmental Awareness”, Duguesne Law Review, 1991.
See Dethfelsen, supra note. See also Sperling, K.R., “Protection of the North Sea: Balance and Prospects” Marine Pollution Bulletin, Vol. 17, No. 6, pp. 241–246, 1986. There are elements in both these pieces that hint at endorsing some version of clean production, although they neither of them employ exactly this terminology.
Cited in Baas, Hofman, Huisingh, Huisingh, Koppert & Neumann, “Protection of the North Sea: Time for Clean Production,” 1990, pp. 18–19. Section 4; entire text reprinted in 1 Yb. Int’l Env.L. (1990), pp. 704–711.
Thus the International Association of Ports and Harbors are wrong to argue that the precautionary principle could be used to justify the dumping of dredged material at sea as the “environmentally preferable disposal method,” even if in precautionary terms, marine disposal was preferable to other disposal strategies. Rather, the principle would argue for an elimination of the need for disposal by means of clean production, and hence obviate the need for these kinds of comparisons. See IAPH, “The precautionary approach and the management of dredged materials” LDC 14/INF.20.
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Cameron, J., Wade-Gery, W. (1995). Addressing Uncertainty. In: Dente, B. (eds) Environmental Policy in Search of New Instruments. Environment, Science and Society, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8504-0_6
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