Precaution in multilateral environmental agreements
and its impact on the World Trading System
Hélène Trudeau and Céline Nègre
Introduction
Much has been said about the precautionary principle. Despite numerous formulations of
the principle in multilateral environmental treaties1 and an abundant doctrine attempting
to grapple its meanings2, the principle remains vague and elusive. The content and nature
of the precautionary principle give rise to considerable controversy. Many of the
characteristics of this emerging legal norm are still shadowy.
This situation does not overshadow the significance the principle has gained over the
years in the development of both international and domestic environmental law. In fact,
the search for a “common understanding” of the precautionary principle is probably
useless since a prudent attitude in the face of scientific uncertainty will manifest itself
differently depending on the specific sectors and risks involved3. One thing appears sure
though: the precautionary principle is undergoing a phase of normative crystallization4.

Hélène Trudeau, Professor, Faculté de droit, Université de Montréal, Senior Research Fellow, C.I.S.D.L..
The author wishes to thank the Fondation du Barreau du Québec, the Fonds George Stellari and the Agence
Universitaire de la Francophonie (AUF), for research grants that contributed to the realization of this work.

Céline Nègre, post-doctoral researcher in international law, Faculté de droit, Université de Montréal.
Coordinator, Research Group in Environment, Centre d’Études et de Recherches Internationales de
l’Université de Montréal (CERIUM). The author wishes to thank the French Ministry of Foreign Affairs for
research grants (bourse Lavoisier).
1
Infra, part 1.
2
See in particular: N. de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution
(Bruxelles: Bruylant, 1999) at 139-151; J. Cameron & J. Abouchar, “The Precautionary Principle: A
Fundamental Principle of Law and Policy for the Protection of the Global Environment” (1991) 14 Boston
College International & Comparative Law Review 1; J. Cameron, “Future Directions in International
Environmental Law: Precaution, Integration and Non-state Actors” (1996) 19 Dalhousie Law Journal 122;
E. Hey, “The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution” (1992)
4 The Georgetown Int’l Envtl. Law Review 303; J.E. Hickey & V.R. Walker, “Refining the Precautionary
Principle in Environmental Law” (1995) 14 Virginia Environmental Law Journal 423; O. McIntyre & T.
Mosedale, “The Precautionary Principle as a Norm of Customary International Law” (1997) 9 Journal of
Environmental Law 221; D. Vanderzwaag, “The Precautionary Principle in Environmental Law and Policy:
Elusive Rhetoric and First Embraces” (1998) 8 Journal of Environmental Law and Practice 354; D.
Freestone & E. Hey, eds, The Precautionary Principle and International Law. The Challenge of
Implementation (The Hague, London, Boston: Kluwer International Law, 1996).
3
See E. Fisher, “Precaution, Precaution Everywhere: Developing a “Common Understanding” of the
Precautionary Principle in the European Community”, (2002) 9 Maastricht Journal of European and
Comparative Law 7 at 15, where the author suggests that most of the misunderstandings surrounding the
precautionary principle have been based on the assumption that the principle is an autonomous rule that
dictates a particular outcome in a certain set of circumstances. This assumption “is at odds with the actual
legal nature of the precautionary principle and how it operates in particular contexts.”
4
See P.-M. Dupuy, “Le principe de précaution, règle émergente du droit international général” in C. Leben
& J. Verhoeven, eds, Le principe de précaution. Aspects de droit international et communautaire (Paris:
1
It has been included in an increasing number of legal instruments. Public decisionmakers refer to it almost systematically in the field of environmental protection and
public health when justifying measures taken in situations of scientific uncertainty as
regards to risks.
Even though formulations of the precautionary principle have been the object of much
variations, a common point of reference can be found in Principle 15 of the 1992 Rio
Declaration on Environment and Development, which reads: “[i]n 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”.
Nowadays, the debate surrounding the precautionary principle is largely perceived as
relating essentially to the position it should occupy with respect to the rules of
international trade. Trade represents a fundamental challenge to the precautionary
principle in practical terms, as the conflicts the interaction of both gives rise to seem
unavoidable. The purpose of this chapter is to present a brief review of what that
interaction has been so far and how it was dealt with in situations of conflict on the
international scene.
The precautionary principle finds its origins in environmental law, and as such was not
fashioned with any particular regard to the body of rules regulating international trade.
Although it gives rise to conflicts with international trade norms, the precautionary
principle did not come into being as a response to them or to exert an influence on them.
Quite to the contrary, the contours of the precautionary principle have been shaped to
ensure the protection of the environment and human health under circumstances that were
traditionally ignored by environmental law – situations of scientific uncertainty.
Specialists in the field of environmental law and environmental protection in general
developed the more specific parameters of the precautionary principle, such as the
triggers in terms of scientific proof and gravity of damages. Nevertheless, as we shall see
in the first section of this chapter, it cannot be said that the evolution of the precautionary
principle is not linked in some ways to trade interests. This situation appears obvious
when considering the influence those interests might have exercised in the drafting of the
precautionary principle in several recent multilateral environmental agreements (1).
In shaping the future of the precautionary principle, the role of international
jurisprudence appears essential, as conflicts between competing versions of precaution
will need to be resolved. The second part of this chapter addresses the issue of the status
of the precautionary principle as it appears through case law at the international level.
Panthéon-Assas, L.G.D.J., 2002) 95 at 95; P. Birnie & A. Boyle, International Law & the Environment
(Oxford : Oxford University Press, 2002) at 118-121. Nevertheless some authors consider that the
precautionary principle is already part of customary law. See N. de Sadeleer, Les principes du pollueurpayeur, de prévention et de precaution, supra note 2, at 142; O. McIntyre & T. Mosedale, “The
Precautionary Principle as a Norm of Customary International Law”, supra note 2, at 223-235. See infra,
part 2.
2
The precautionary principle is a polymorph idea with huge potential, like the concept of
fault in civil law or principles of general application in public law such as the audi
alteram partem rule and the dicta against bias of public officials. In the same way those
principles and concepts were given more specific substance over decades and centuries of
judicial interpretation, the meaning of precaution needs to be shaped by jurisprudence, be
it at the international or domestic levels. Also like general concepts and principles of
civil and public law, the exact interpretation and application of the precautionary
principle will be closely tied to the facts of each situation where it is invoked 5. There is
no doubt that it is through cases relating to trade rules that uncertainties still surrounding
the status of the precautionary principle within the norms of international law will be
progressively clarified (2).
1.
Crossed influences between the precautionary principle and trade interests
in multilateral environmental agreements
The confrontation of a normative principle with the rules of international trade is quite
another matter than the constitution of the principle itself. Confrontation results from the
pressure the new principle put on trade norms, particularly in the environmental field in
the case of the precautionary principle. The coming into being of the principle is an
event necessarily prior to the conflicts in which it is involved. This raises the question of
the possible crossed influences between the precautionary principle and international
trading norms, in the context of the current phase of crystallization of that principle. It
appears that in sectors where economic interests seem most important, the general trend
of consolidation of the precautionary principle is somewhat restrained (1.1.). On the
other hand, the most recent instruments relating to genetically modified organisms
(GMOs) show that however powerful the economic interests may be, if there is a risk of
irreversible damage, the precautionary principle can nevertheless be the choice of the
majority of States (1.2.).
1.1.
Trade interests as a resistance to precaution
It is significant that references to the precautionary principle do not appear in every
recent multilateral environmental agreement where it would have been legitimate to see it
included. The absence of absolute systematization does not call into question the process
of normative consolidation of the precautionary principle. Like any other international
norm, the precautionary principle does not need an absolutely concordant application in
practice for it to eventually be recognized as part of customary law 6. On the other hand,
the fact that the precautionary principle is not systematically mentioned in international
See R. Briese, “Precaution and Cooperation in the World Trade Organization: An Environmental
Perspective” (2002) 22 Australian Yearbook of International Law 113 at 126, where the author suggests
that the precautionary principle “is a principle in the Dworkinian sense. It influences the decision but does
not necessarily determine it. Its precise role can, therefore, only be ascertained on a case-by-case basis”.
6
See art. 38 (1) (b) of the Statute of the International Court of Justice which defines international custom as
“evidence of a general practice accepted as law”.
5
3
instruments related to environmental protection, and more particularly in multilateral
environmental agreements, is a sign of resistance to it. The silence of some agreements
in regard to the precautionary principle is not a random occurrence, but the result of
actual pressures.
The precautionary principle first appeared in a sectorial and regional framework:
pollution of the marine environment in the North-East Atlantic, and initially in the North
Sea. The work undertaken under the auspices of the OECD in the 1980s on the growing
pollution of the North Sea, had as its purpose to seek a solution to the inadequacies of the
system of quotas for pollution discharge, then in place under the applicable legislation 7.
The complex issues raised by the capacity of the marine environment to absorb such
pollutants and the as yet rather unreliable nature of scientific knowledge, combined with
the consideration given to the risk of damageable outcomes, justified the introduction of a
new approach. This approach would result in the taking of restrictive measures against
potential pollutants, even though neither the existence of damages nor the causal link
between those damages and the pollutants had been established with certainty. There was
no real obstacle to this approach, so serious was the potential exposure to damaging
outcomes. The approach, adopted as an OECD8 non-binding instrument, was then
adopted in the framework of conventional law applicable to the entire North-East
Atlantic9.
For a detailed historical analysis, see O. McIntyre & T. Mosedale, “The Precautionary Principle as a
Norm of Customary International Law”, supra note 2, at 224-231; P.-M. Dupuy, “Le principe de
précaution, règle émergente du droit international général”, supra note 4, at 96-100; P.-M. Dupuy, “Le
principe de précaution et le droit international de la mer”, in La mer et son droit, Mélanges offerts à
Laurent Lucchini et Jean-Pierre Quéneudec (Paris: Pedone, 2003), 205 at 207-212; D. Freestone,
“International Fisheries Law since Rio: the Continued Rise of the Precautionary Principle” in A. Boyle &
D. Freestone, eds, International Law and Sustainable Development (Oxford: Oxford University Press,
2001) 135.
8
See the Declaration of the International Conference on the Protection of the North Sea, Bremen, 1
November 1984, in D. Freestone & T. Ijlstra, eds., The North Sea: Basic Legal Documents on Regional
Environmental Co-operation (Dordrecht, Boston & London: Graham & Trotman / Martinus Nijhoff, 1991)
61; the Declaration of the Second International Conference on the Protection of the North Sea, London, 25
November 1987, art. VII: “Accepting that, 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”, ibid., at 41; and the preamble of the Ministerial Declaration of the Third International
Conference on the Protection of the North Sea, The Hague, 8 March 1990: “[The participants] will 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 bioaccumulate even where there is no scientific evidence
to prove a causal link between emissions and effects”, ibid., at 5.
9
See the Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris, 22
September 1992 (entered into force 25 March 1998), Art. 2 (2) (a): “The Contracting Parties shall apply: a.
the precautionary principle, by virtue of which preventive measures are to be taken when there are
reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine
environment may bring about hazards to human health, harm living resources and marine ecosystems,
damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive
evidence of a causal relationship between the inputs and the effects” (emphasis added).
7
4
As a meta-legal principle par excellence10, the precautionary principle reveals a change in
the law arising from confrontation with new social fears, which have necessarily been
conducive to a move from prevention to anticipation11. The fear12 of the consequences
attached to new technologies, such as genetic engineering or the potential for damage to
the global environment discovered at the end of the last century, have led to a change in
the way behaviour is regulated. There is no longer any question of abstaining13 from
decision-making when faced with a risk due to events over which there is still too little
control. Although there may be doubt in regard to the final occurrence of potential
damage, the increase in the risk factor, combined with the gravity of the damage likely to
occur, form the basis of application of the precautionary principle.
The precautionary principle is becoming increasingly enshrined in law, at least in its
more restrictive interpretation, insofar as it represents a means to apprehend scientific
uncertainty. At this point precisely, it goes beyond the traditional principle of
prevention14, whose application is restricted to situations where risks are known and
identified. In practice, it is a manifestation of a profound change affecting the structure
of the international legal system. That system is henceforward no longer based only on
the known – under an approach frequently criticized as being in lag of reality –, but
encompasses the anticipation of what may occur, doing so out of an intent to ward off
possible and more serious damaging outcomes. Be it as part of the law of the sea15 or
more generally on environmental protection16, the development of the precautionary
See L. Boisson de Chazournes, “Le principe de précaution: nature, contenu et limites”, in C. Leben & J.
Verhoeven, Le principe de précaution. Aspects de droit international et communautaire, supra note 4, 65 at
66.
11
In opposition to what has been written by some authors, the Stockholm Declaration is based on the idea
of prevention, and not of precaution: see D. Freestone, “The Precautionary Principle”, in R. Churchill & D.
Freestone, International Law and Global Climate Change (London: Graham & Trotman, 1991), 21 at 33;
contra, see P.-M. Dupuy, “Le principe de précaution, règle émergente du droit international général”, supra
note 4, at 97, note 6.
12
See H. Jonas, Le principe responsabilité: une éthique pour la civilisation technologique (Paris: éd. Du
Cerf, 1990) at 110-111.
13
See for example O. Godard, “De la nature du principe de précaution”, in E. Zaccaï & J.-N. Missa, Le
principe de précaution – significations et conséquences (Bruxelles: éditions de l’Université de Bruxelles,
2000) 19 at 25.
14
See P.-M. Dupuy, “Où en est le droit international de l’environnement à la fin du siècle ?” (1997) 4
Revue Générale de Droit International Public 873 at 889, for whom the precautionary principle is the most
contemporary manifestation of the principle of prevention.
15
See for instance the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter (London, 13 November 1972), 7 November 1996 (not entered into force), Art. 3
(1): “[i]n implementing this Protocol, Contracting Parties shall apply a precautionary approach to
environmental protection from dumping of wastes or other matter whereby appropriate preventive
measures are taken when there is reason to believe that wastes or other matter introduced into the marine
environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation
between inputs and their effects”.
16
Before the Rio Declaration, the first mention of the precautionary principle for the protection of the
environment in general can be found in the Bergen Declaration of the Economic Commission for Europe,
in the context of sustainable development. Paragraph 7 of the Declaration states that “[i]n 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
10
5
principle represented the translation into legal terms of the new demands imposed on a
risk-based society.
As an ethical value penetrating the body of the law, it is true that the precautionary
principle may give rise to excesses. When simply expressed, it is emblematic of a
reasonable attitude, which appears to be a formalized yet common sense approach. It
begs agreement as a self-evident truth. It is then but a short step to interpreting it as an
absolute imperative. Detractors are fiercely opposed to it, as the alleged shackles of a
bygone age impeding all forms of progress. Nevertheless, in a society facing potential
aggression from imperfectly assessed hazards, which may impact both on its present
reality17 and upcoming evolution18, the precautionary principle seems to be at the same
time a means to avoid the errors of the past, and a reassurance in the face of an
unpredictable future19. Therefore, it appears that neither the historical development nor
the object of the precautionary principle are directly related to international trading
considerations.
In multilateral environmental agreements, the precautionary principle appears for
example in the Stockholm Convention on Persistent Organic Pollutants of 200120, in the
two Protocols to the Convention on Long-Range Transboundary Air Pollution of 1979,
relating respectively to Persistent Organic Pollutants and to Heavy Metals, adopted in
199821, in the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer 22 and
measures to prevent environmental degradation”, reprinted in (1990) 20 Environmental Policy & Law, 100.
See also the 1990 Bangkok Declaration on Environmentally Sound and Sustainable Development in Asia
and the Pacific, Ministerial Conference on the Environment, UN Economic and Social Commission for
Asia and the Pacific (ESCAP), Report of the UN ESCAP Ministerial Conference on the Environment,
Bangkok, 15-16 October 1990, Appendix 2 at 8-10.
17
The existence of diseases transmitted to humans by animals and the transmission of viruses (HIV,
hepatitis) can be cited as examples.
18
For instance, the climate change phenomenon and its potential impact.
19
See F. Ost, “Les multiples temps du droit”, in Le droit et le futur (Paris: P.U.F., 1985), 115 at 119.
20
22 May 2001 (entered into force 17 May 2004). See preamble, al. 8: “Acknowledging that precaution
underlies the concerns of all the Parties and is embedded within this Convention” and Art. 1 (Objective):
“Mindful of the precautionary approach as set forth in Principle 15 of the Rio Declaration on Environment
and Development, the objective of this Convention is to protect human health and the environment from
persistent organic pollutants”. See also, though in a more indirect way, Art. 8 (9) and Annex C (V) (B)
(Best available techniques).
21
Aarhus, 24 June 1998 (respectively entered into force on 23 October 2003 and on 29 December 2003).
See Preamble, al. 7 of the Protocol on persistent organic pollutants: “Resolved to take measures to
anticipate, prevent or minimize emissions of persistent organic pollutants, taking into account the
application of the precautionary approach, as set forth in principle 15 of the Rio Declaration on
Environment and Development” and the equivalent disposition in the Protocol on Heavy Metals (Preamble,
al. 8). See also, in the first of these instruments, Annex V, par. 2, and more indirectly Art. 4(2) (b) (iii) and
(c) (v). In the second Protocol, see Annex III (I) (2), and Annex VII (3).
22
16 September 1987 (entered into force 1 January 1989). See Preamble, al. 6: “Determined to protect the
ozone layer by taking precautionary measures to control equitably total global emissions of substances that
deplete it, with the ultimate objective of their elimination on the basis of developments in scientific
knowledge, taking into account technical and economic considerations and bearing in mind the
developmental needs of developing countries”. See also al. 8.
6
more particularly in the Cartagena Protocol on Biosafety to the Convention on Biological
Diversity of 200023.
Another trend exists though, characterized by a resistance to the precautionary principle,
in areas where issues in economic terms are of particular consequence. As a result, the
precautionary principle may not be adopted, or if so, in an attenuated form or in an
indirect way.
One of the most significant examples of this trend is the Declaration of Principles on
Forests. This is the only instrument adopted at the 1992 Rio Conference on Environment
and Development that does not include the precautionary principle. The tenacious
opposition of the main countries working in timber and forestry, such as Indonesia, and
the representatives of the timber industry, prevented not only the adoption of mandatory
instruments at this time, but also stood in the way of any reference to the precautionary
principle, which was perceived as an impediment to business in this sector24.
For similar reasons, although a treaty was signed, negotiations concerning trade in toxic
substances gave rise to the same outcome. The Convention of Rotterdam25 organized
trade in toxic substances by introducing procedures of informed prior consent, but did not
go so far as to include the precautionary principle. At most, this instrument deals with
precautions required as part of the management of the risk from toxic materials26. There
is no question that the trade and use of toxic substances can give rise to damages in a
context of uncertainty as regards risks. However, the informed prior consent procedure,
while it may be perceived as one of the applications of the precautionary principle in
certain circumstances, is nevertheless not a necessary manifestation thereof. In the
29 January 2000 (entered into force 11 September 2003). See Preamble, al. 5: “Reaffirming the
precautionary approach contained in Principle 15 of the Rio Declaration on Environment and
Development”; Art. 1: “In accordance with the precautionary approach contained in Principle 15 of the Rio
Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an
adequate level of protection in the field of the safe transfer, handling and use of living modified organisms
resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use
of biological diversity, taking also into account risks to human health, and specifically focusing on
transboundary movements”; Art. 10 (6), Art. 11 (8) and Annex III (Risk Assessment) (4) (General
Principles). For specific developments relating to this instrument, see infra, 1.2.
24
Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management,
Conservation and Sustainable Development of all Types of Forests, Rio de Janeiro, 14 June 1992,
A/CONF.151/26 (Vol. III), Annex III. See P. M. Saunders, “Moving from Rio: Recent Initiatives on Global
Forest Issues” (1994) 32 Canadian Yearbook of International Law 143 at 143-145; M. Jahnke, “Rio
Conference on Environment and Development” (1992) 22 Environmental Policy & Law 204 at 222. See
also M. Steiner, “The Journey from Rio to Johannesburg: Ten Years of Forest Negotiations, Ten Years of
Successes and Failures” (2002) 32 Golden Gate University Law Review 629; V.K. Prabhakar, “Rio
Declaration and Forest Principles” in V.K. Prabhakar, ed., International Laws on Biodiversity (New Delhi:
Anmol, 2001) 228.
25
Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade, 10 September 1998 (entered into force 24 February 2004).
26
See Art. 14 (3) (d), according to which “[i]nformation on precautionary measures, including hazard
classification, the nature of the risk and the relevant safety advice” (…) “shall not be regarded as
confidential for the purposes of this Convention”. See also Annex V, par. 1, al e), which aims at
“[i]nformation on precautionary measures to reduce exposure to, and emissions of, the chemical”.
23
7
context of this particular instrument, the procedure agreed upon seems to be one that
reflects the idea of prevention rather than being based on precaution. Clearly, there was a
barrier standing in the way of the application of the precautionary principle. The signs of
such a barrier can be traced throughout the preparatory work leading up to the
Convention. Not one of the 11 reports of the Intergovernmental Negotiating Committee
mentions the precautionary principle27.
The Kyoto Protocol on climate change28 is another recent instrument that does not
mention the precautionary principle. It is to be remembered though that the Protocol in
itself may be perceived as an application of the precautionary principle, as no scientific
certainty has emerged yet on the exact causes of climate change. But the lack of direct
reference to the precautionary principle in the text of the Kyoto Protocol, in opposition to
some comparable instruments, may be seen as a reflection of the significance of
economic interests in this sector. While reference was made to the uncertainties
surrounding our knowledge of climate change, no inference was openly made that there
should be no barrier to the adoption of precautionary measures29. The negotiating Parties
agreed on the technical implementation of the precautionary principle in terms of
concrete measures taken to limit the emissions of greenhouse gases, but not on its direct30
normative recognition. From this point of view, it is interesting to note that some draft
measures which did adopt the precautionary principle, were not finally included 31. It is
true that commercial interests exerted heavy pressure against the making of economic
sacrifices to keep down greenhouse gases. Nevertheless, the pressure exerted was no
greater than for the GMOs. The reason is that, with GMOs, we are confronted with the
very basis of the precautionary principle: risk of great damage.
1.2.
Precaution and GMOs: the prevalence of fear of risk over trade interests
Of itself, the inclusion of the precautionary principle in a multilateral convention relating
to environmental protection, adopted in 2000, comes as no surprise, given the general
move toward its normative crystallization. Nevertheless, the Cartagena Protocol on
Biosafety breaks new ground considering the enormous pressure put on the States by the
commercial interests involved in the use of modern biotechnologies in the food and
27
See for instance the last report, Report of the Intergovernmental Negotiating Committee for an
International Legally Binding Instrument for the Application of the Prior Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade on the Work of its Eleventh Session,
UNEP/FAO/PIC/INC.11/7, 18 September 2004.
28
Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997
(the entry into force will occur on 16 February, 2005).
29
See Art. 3 (4) and Art. 10 (d).
30
See the cross reference to art. 3 (3) of the United Nations Framework Convention on Climate Change
(New York, 9 May 1992, entered into force 21 March 1994) in the Preamble of the Kyoto Protocol. This
disposition reproduces the most commonly adopted wording of the precautionary principle. See J.-P. Van
Ypersele, “Effet de serre et précaution: enjeux et réponses”, in E. Zaccaï & J.-N. Missa, eds, Le principe de
précaution – significations et conséquences, supra note 13, 155 at 158-161.
31
See Report of the ad hoc Group on the Berlin Mandate on the Work of its Sixth Session, Bonn, 3-7 March
1997 – Proposals for a Protocol or Another Legal Instrument – Negotiating Text by the Chairman,
FCCC/AGBM/1997/3/Add.1 at 10, 20-21, 68.
8
agriculture industry. It is paradoxically in an area of extensive underlying commercial
and trading interests that the precautionary principle has in the recent past been more
solidly rooted.
Not only does the Cartagena Protocol on the prevention of
biotechnological risks make express reference to the precautionary principle, but it does
so in several different ways.
The Protocol preamble draws attention to the fact that the Parties have, with this
instrument, appropriated the content of Principle 15 of the Rio Declaration32. This
wording is found in other similar treaties33. Still less surprising is the adoption of the
wording of the precautionary principle in the provisions on risk management34, as this is
the primary intent of the protocol. On the other hand, Article 1 of the Protocol breaks
new ground. The first provision in the treaty, symbolically introducing the document,
deals with the general purpose of the Protocol. That purpose is expressly based on the
precautionary principle, and is drafted as follows:
“In accordance with the precautionary approach contained
in Principle 15 of the Rio Declaration on Environment and
Development, the objective of this Protocol is to contribute
to ensuring an adequate level of protection in the field of
the safe transfer, handling and use of living modified
organisms resulting from modern biotechnology that may
have adverse effects on the conservation and sustainable
use of biological diversity, taking also into account risks to
human health, and specifically focusing on transboundary
movements”.
This marks a notable advance with respect to the crystallization of the precautionary
principle. That principle is no longer solely adopted as a technical mechanism for the
regulation of the risk of damageable outcome, in an area laden with uncertainty, nor is it a
general guideline for the conduct of States. The principle henceforward becomes an
objective to be pursued by the Parties. The difference is important, and translates into the
Preamble, al. 5: “Reaffirming the precautionary approach contained in Principle 15 of the Rio
Declaration on Environment and Development”.
33
See for instance the Stockholm Convention on Persistent Organic Pollutants, supra note 20, Preamble, al.
8; the Protocol on Heavy Metals, supra note 21, Preamble, al. 8; the Protocol on Persistent Organic
Pollutants, ibid., Preamble, al. 7; the Protocol on Pollutant Release and Transfer Registers, Kiev, 21 May
2003 (not entered into force), Preamble, al. 11 (Protocol to the Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June
1998 (entered into force 30 October 2001).
34
See Art. 10 (6) (Decision procedure) : “Lack of scientific certainty due to insufficient relevant scientific
information and knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of import, taking also
into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with
regard to the import of the living modified organism in question as referred to in paragraph 3 above, in
order to avoid or minimize such potential adverse effects”. See also art. 11 (8) (Procedure for living
modified organisms intended for direct use as food or feed, or for processing) and Annex III (Risk
assessment) (4) (General principles).
32
9
fact that the States are not required simply to draw their inspiration from the principle,
but to act “in accordance” with it, in the practical field of the regulation of the crossborder movements of GMOs. In the draft, “in accordance” is an advised choice, and was
the subject of careful negotiation. The “Miami Group”, a gathering of the major
biotechnology producing States, was opposed to this formulation and wanted to see it
replaced by the wording “taking note of the precautionary approach”35. This wording
would have signalled a far less well defined obligation than the one finally adopted.
The representatives of the GMO producer States were also opposed to making multiple
references to the precautionary principle in the draft of the Cartagena Protocol. In this
respect they were in part successful. The dispute focussed essentially on the draft Article
8 (7) relating to the decision-making procedure36. As in the original draft, this measure
was based on the precautionary principle, or at least on the formulation thereof derived
from Principle 15 of the Rio Declaration37. The measure as adopted in the definitive text,
Article 10 (6), takes up the content of the earlier draft, but in wording which does not
directly allow the importing Party to prohibit the import of a living modified organism
(LMO) in the event that there is no scientific certainty regarding its potentially harmful
effects. In this case, the option open to the importing Party, according to the draft, will
be restricted to “taking the appropriate decision”38. Arguably though, the “appropriate
decision” could very well be in a particular situation the prohibition of import, despite the
change of vocabulary that occurred during the negotiations of the Protocol.
Nevertheless, one feature of the negotiation remains striking: many negotiating States
made pronouncements on the principle and they were all favourable, not only to the new
approach encompassed by the protocol, but also to its inclusion in a binding multilateral
instrument on the transport and movement of LMOs39. Canada, although one of the main
producing countries, actually acknowledged that the Protocol was the expression of the
precautionary principle as such, emphasising the degree to which the Protocol was in the
35
See, Report of the Extraordinary Meeting of the Conference of the Parties for the Adoption of the
Protocol on Biosafety to the Convention on Biological Diversity, UNEP/CBD/ExCOP/1/3, 20 February
2000, at 23.
36
Negotiations on that point lasted long; ibid., at 23, 36-41.
37
“Lack of full scientific certainty or scientific consensus regarding the potential adverse effects of a living
modified organism shall not prevent the Party of import from prohibiting the import of the living modified
organism in question as referred to in paragraph 3 (b) above”, Report of the Sixth Meeting of the OpenEnded ad hoc Working Group on Biosafety, UNEP/CBD/ExCOP/1/2, 15 February 1999 at 23.
38
See, supra note 34.
39
See Report of the First Meeting of the Open-Ended ad hoc Working Group on Biosafety,
UNEP/CBD/BSWG/1/4, 22 August 1996 (Denmark and other States at 2, 10-11) ; Report of the Second
Meeting of the Open-Ended Working Group on Biosafety, UNEP/CBD/BSWG/2/6, 11 June 1997 at 10, 12,
31; Report of the Third Meeting of the Open-Ended ad hoc Working Group on Biosafety,
UNEP/CBD/BSWG/3/6, 10 october 1997 at 3, 20; Terms of Reference for the Open-Ended Ad Hoc
Working Group, annexed to Decision II/5, adopted by the second Conference of the Parties (COP 2), 1997,
par. 5: “The Protocol will take into account the principles enshrined in the Rio Declaration on Environment
and Development and, in particular, the precautionary approach contained in Principle 15”; Compilation of
New Government Submissions of Draft Text (Structured by Article), UNEP/CBD/BSWG/5/2, 3 July 1998;
Report of the Fifth Meeting of the Open-Ended ad hoc Working Group on Biosafety,
UNEP/CBD/BSWG/5/3, August 1998 (Colombia and developing countries at 14-15).
10
spirit of that principle40. The “spirit” was also one of the main arguments put forward by
the “Miami Group” in support of the view that it was unnecessary to make multiple
references to the principle41. In actual practice though, the outcome was that the
producing countries expressed in some ways their approval with the inclusion of the idea
of precaution in regulating living modified organisms (LMOs) on the international scene,
although they would not have rendered the precautionary principle as binding as it
actually is in the adopted instrument.
The inclusion of the precautionary principle in this field of activity was supported by the
precedent of the Convention on Biological Diversity42, and by a number of sectorial
instruments, which also relate to the protection of biodiversity, such as the Agreement on
the Conservation of African-Eurasian Migratory Waterbirds43. The first steps to the
inclusion of the precautionary principle had therefore been taken in the years prior to the
adoption of the Cartagena Protocol.
The current state of affairs reveals a boundary being in fact drawn between those areas in
which changes in consciousness are occurring and where the application of the
precautionary principle is called for as a matter of necessity, and the majority of other
fields which are grey areas, onto which the precautionary principle will be grafted as and
when the balance of opposing forces allows.
Transboundary movements of LMOs is a special case, situated on that fine demarcation
where a preventive approach is not sufficient, confirming the need to move on to a
precautionary approach. LMOs represent a core concern in their own right, and inspire
fear as to the potentially irreversible nature of any damageable outcome should it ever
occur44, and do so irrespective of any parallel economic interests.
The threshold at which a potentially damaging outcome might occur, now becomes a
fundamental criterion. Although the precautionary principle was not in any systematic
way formulated for the purpose of apprehending the risk of irreversible damaging
40
Report of the Extraordinary Meeting of the Conference of the Parties for the Adoption of the Protocol on
Biosafety to the Convention on Biological Diversity, supra note 35, at 45.
41
Ibid. at 40.
42
Preamble, al. 9: “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
minimize such a threat”. It is to be noticed that the prior draft mentioned the precautionary principle among
the binding dispositions. See A.E. Boyle, “The Rio Convention on Biological Diversity” in M. Bowman &
C. Redgwell, (eds.), International Law and the Conservation of Biodiversity (London: Kluwer Law
International, 1996) 37.
43
The Hague, 16 September 1995 (entered into force 1 November 1999), Art. 2 (2) (e). See also the
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the
Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and
Highly Migratory Fish Stocks, New York, 4 December 1995 (entered into force 11 December 2001), art. 5
(c) and art. 6; the 1994 Fort Lauderdale Resolution adopted by the Parties to the CITES Convention,
Resolution of the Conference of the Parties: Criteria for Amendment of Appendices I and II, Ninth Meeting
of the Conference of the Parties, Fort Lauderdale, 7-18 November 1994. See V.B. Dickson, “The
Precautionary Principle in CITES : A Critical Assessment” (1999) 39 Natural Resource Journal 211.
44
See N. de Sadeleer & C.-H. Born, Droit international et communautaire de la biodiversité (Paris: Dalloz,
2004) at 73.
11
outcomes45, a number of instruments limit its application to that context46. It would
appear that, at least in some sectors, only the most serious outcomes would justify the
adoption of the precautionary approach. This is tantamount to saying that, in the case of
scientific uncertainty, the precautionary principle will be invoked, if not always, at least
when faced with the risk of the most extensive damage.
Determination of the threshold of gravity of potential damage is no easy matter. Practice
among States has nevertheless thrown light on an important point, by making a
distinction between the gravity and the irreversibility of a potential damaging outcome47.
Particularly severe damage is not necessarily irreversible, and vice versa. It therefore
remains to be determined whether the threshold for the adoption of the precautionary
principle is reached by the cumulative combination of the two criteria, or whether a
degree of severity or of irreversibility in their own right will suffice. But the potential for
damaging outcome from GMOs is emblematic of the worst-case scenario. The gravity of
the damage which such organisms could entail, and more particularly the likelihood that
such damage will be irreversible, conducted the States to adopt a rather strong version of
the precautionary principle in the Cartagena Protocol.
The transboundary movement of LMOs is a sector that differs in one essential point from
the others. There is no overriding need to adopt new production techniques based on
biotechnology, considering the risks that they may generate. Forcing the introduction of
products when there are weighty suspicions that they may either be harmful to health, or
give rise to changes in the natural environment, will not only generate feelings of
insecurity, but also represents an unwarranted limitation of the freedom of choice of
citizens and consumers. The particularly high profile reaction in Europe, in opposition to
the systematically authorized dissemination of LMOs that occurred for instance in some
GMO producing countries, is the result of a legitimate fear that the introduction of LMOs
would render impossible the access to foods previously available in their full variety and
richness. The same situation does not, for example, apply in the field of greenhouse gas
emissions, as no viable equivalent to fossil sources has yet been found which can
basically fuel heat and transportation, both for private and business purposes. Here the
argument based on necessity does not carry the same weight as it does for LMOs.
However, the shift to a new approach is not complete, even in the case of the recent
regulations on GMOs. Resistance survives in this field too, as demonstrated by the work
See the Convention on Biological Diversity, Preamble, al. 9 (“threat of significant reduction or loss of
biological diversity”); the Convention on the Protection and use of Transboundary Watercourses and
International Lakes, Helsinki, 17 March 1992 (entered into force 6 October 1996), art. 2 (5) (a) (“potential
transboundary impact of the release of hazardous substances”); the Bamako Convention on the Ban of the
Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes
within Africa, 30 January 1991 (entered into force 22 April 1998), art. 4 (3) (f) (“preventing the release into
the environment of substances which may cause harm to humans or the environment”).
46
As in Principle 15 of the Rio Declaration.
47
See the analysis exposed by L. Boisson de Chazournes, “Le principe de précaution: nature, contenu et
limites”, supra note 10 at 77-79, who comments the reflections of N. de Sadeleer, Les principes du
pollueur-payeur, de prévention et de précaution. Essai sur la genèse et la portée juridique de quelques
principes du droit de l’environnement, supra note 2 at 180-184. On the notion of irreversibility, see Revue
Juridique de l’Environnement (1999) special issue.
45
12
undertaken by the FAO. The Codex alimentarius48 and the different committees of the
FAO undertaking studies and proposing lines of conduct in regard to the many questions
raised by the use of GMOs49, do not base their findings on the precautionary principle,
but on the technique of substantial equivalence. The weight of producer States within the
FAO, and the longstanding use of this technique exert full power in favour of the status
quo and against the precautionary principle.
It can nevertheless be foreseen that a move toward the precautionary principle, even in
these arenas, could take place in the future. There are substantial signs of this, among
them reference to the precautionary principle by some in the FAO50, and the questions
raised about the method of substantial equivalence by States which currently adopt that
method. But change, if it were to take place, will not in all likelihood occur in the
immediate future51. The voices raised in the FAO are not among the most decisive, and
although dissent in regard to the principle of substantial equivalence has at least been
voiced in Canada52, it has not spread everywhere53. Concrete developments have yet to
occur.
In the context of the Cartagena Protocol itself, elements of resistance to the precautionary
principle are perceptible. There is no trace of that principle in the documents where it
had been foreseen it would be included54. The fact also that the Protocol’s preamble
refers to the “precautionary approach” set out in Principle 15 of the Rio Declaration, but
makes no mention of the “precautionary principle” as such, is symptomatic of the
compromises that must have been made by the Parties.
48
See Principles for the Risk Analysis of Foods Derived from Modern Biotechnology, CAC/GL 44-2003;
Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Plants,
CAC/GL 45-2003; Guideline for the Conduct of Food Safety Assessment of Foods Produced Using
Recombinant-DNA
Microorganisms,
CAC/GL
46-2003,
online
www.codexalimentarius.net/web/standard_list (date accessed: 25 January 2005).
49
See Commission on Genetic Resources for Food and Agriculture, Progress on the Draft Code of Conduct
on Biotechnology as it Relates to Genetic Resources for Food and Agriculture: Policy Issues, Gaps and
Duplications, Tenth regular session, Rome, 8-12 November 2004, CGRFA-10/04/13; “FAO Statement on
Biotechnology”, online www.fao.org//biotech/stat.asp (date accessed: 25 January 2005); “Biotechnology
and Food Safety. Safety Assessment of GM Foods: The Concept of Substantial Equivalence”, online:
www.fao.org/es/ESN/food/risk_biotech_se_en.stm (date accessed: 25 January 2005).
50
“FAO Stresses Potential of Biotechnology but Calls for Caution”, Press Release 00/17, online:
www.fao.org/WAICENT/OIS/PRESS_NE/PRESSENG/2000/pren0017.htm (date accessed: 25 January
2005).
51
See the consultation of experts convened at the FAO on 27 January 2005 where it has been recommended
“that any responsible deployment of Genetically Modified (GM) crops need to comprise the whole
technology development process, from the pre-release risk assessment, to biosafety considerations and post
release monitoring”. It has not been specified if this means the inclusion of the precautionary principle. In
any event, the FAO keeps on referring to the principle of substantial equivalence even in its new strategy.
See FAO, “Monitoring the environmental effects of GM crops”, online: at www.fao.org/newsroom (date
accessed: 25 January 2005).
52
See infra Part. 2.2.
53
For instance, precaution was included in the text of the International Plant Protection Convention adopted
in November 1951 (entered into force 3 April 1952) but has been deleted in the 1997 revision (not yet in
force).
54
See Glossary of Terms Relevant to a Biosafety Protocol. Results from a Preliminary Survey by the
Secretariat, UNEP/CBD/BSWG/2/5, 18 March 1997.
13
14
2.
The challenge ahead for international tribunals: resolving conflicts between
competing versions of precaution
The status conferred in international law to the precautionary principle has been the
object of much debate. Some authors have suggested that the principle has gained the
status of customary law, especially considering the impressive number of legal
instruments, both at the international and regional levels, where it has been included55. It
cannot be denied that the multiplicity of formulations of precaution through binding and
nonbinding instruments certainly ascertains its role as one of the leading new directions
given to international environmental law in recent years56. Nevertheless, it can be
assumed that it is mainly through conflicts arising from the confrontation of
precautionary measures and other internationally formulated rules that a more definite
answer to that question will be articulated. International adjudicators and courts will
inevitably play a major role in accomplishing that task. The precautionary principle has
already been invoked in several litigations at the international level. The scope of this
paper does not permit a review of all of them57 but two of the most significant cases are
analyzed below, one emanating from the International Court of Justice, the other from the
Appellate Body of the World Trade Organization (WTO) (2.1). In terms of interactions
between the precautionary principle and trade law rules, the actual conflicts that can
result from the release into the environment of genetically modified organisms (GMOs)
command a special attention (2.2).
2.1
The Danube Dam Case58 and the Hormones Case59
It is worth noting that the precautionary principle has not been recognized so far as a rule
of customary international law either by the International Court of Justice (ICJ) or the
Appellate Body of the World Trade Organization (WTO), despite the fact that both
instances had the opportunity to consider its relevance in litigations concerning potential
threats to the environment or human health. Some believe that the Gabcikovo
Nagymaros has been a “missed opportunity” in that respect60. The conflict submitted to
55
See supra, note 4.
See J. Cameron, J. Cameron, “Future Directions in International Environmental Law: Precaution,
Integration and Non-state Actors”, supra note 2.
57
For a more complete analysis of the international jurisprudence concerning the precautionary principle,
see in particular: M.C. Cordonier Segger & M. Gehring, “Precaution, Health and the World Trade
Organization: Moving toward Sustainable Development” (2003) 29 Queen’s L.J. 133 at 143-155.
58
Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports
1997, 3 [hereinafter Danube Dam].
59
EC Measures concerning Meat and Meat Products (Hormones), WTO Doc. WT/DS26/AB/R, 16 January
1998 [hereinafter Hormones].
60
As two authors put it: “There were many opportunities throughout the Danube Dam Case for the Court to
rely upon the precautionary principle. […] [T]he failure of the ICJ to consider [it], instead primarily relying
upon principles of treaty law, was a disappointment”. See A. A-Khavari & D.R. Rothwell, “The ICJ and the
Danube Dam Case: A Missed Opportunity for International Environmental Law” (1998) 22 Melbourne
University Law Review 507 at 530. For a detailed presentation of the facts of that dispute, see C.P.R.
Romano, The Peaceful Settlement of International Environmental Disputes. A Pragmatic Approach, (The
Hague, London, Boston: Kluwer International Law, 2000) at 246-260.
56
15
the ICJ originated in 1989 when Hungary suspended and abandoned the project it had
agreed to carry out jointly with Czechoslovakia, as it was then known, for the
construction and operation of a Barrage System on the Danube River, pursuant to a
Treaty and some related instruments entered into between the two countries in 1977.
When Hungary abandoned the work, Czechoslovakia proceeded unilaterally with a
temporary solution, by diverting the waters on its territory into a canal. Then the
realization of more work without the need for any intervention into or by Hungary was
designed to satisfy the needs of Czechoslovakia for the production of electric power 61.
That unilateral action by Czechoslovakia led to another type of action by Hungary, which
decided to terminate the treaty in May 1992. In the summer of 1993, after the dissolution
of the State of Czechoslovakia into Slovakia and the Czech Republic, and the succession
of States that resulted, the dispute was referred to the ICJ by a special agreement entered
into between the governments of Slovakia and Hungary. The decision of the ICJ was
rendered on September 25, 1997.
In its decision, the Court makes no mention whatsoever of the precautionary principle62
even though the Court explicitly relies on the concept of sustainable development. This
concept is used by the Court as an effort to reconcile its ruling that Hungary violated its
treaty obligations by refusing to pursue the construction of the dam with Slovakia with
the reasons invoked by Hungary for such refusal. Hungary pretended that no adequate
environmental assessments had been performed as to the project and that significant risks
to the fauna and flora of the Danube River and to the water supply of the city of Budapest
would be created by the construction and operation of the dam. Given the growing
opposition of its citizens to the project, Hungary decided not to continue with the
building of the dam, and justified its violation of the treaty contracted with
Czechoslovakia, as it was then known, by invoking a “state of ecological necessity”63.
The Court, relying on principles of customary law, recognized that a state of necessity
precluding the wrongfulness of an act not in conformity with an international obligation
could be triggered by a “grave and imminent peril” to the environment64, although it
61
See C.P.R. Romano, ibid., at 250.
According to Pierre-Marie Dupuy, counsel of Hungary in that litigation, even though the precautionary
principle was expressly mentioned in the written proceedings, Hungary did not intend to rely too heavily on
it considering its uncertain status in international environmental law. Hungary stressed instead that
precaution was nothing else but a more contemporary and advanced version of the principle of prevention,
which in its view has arguably gained over the years the status of customary international law. Given that
most of the damages invoked by Hungary were not actual and certain, but rather potential ones, with a high
probability of occurrences on a scale of five to fifty years, Dupuy estimates the case to be one where the
precautionary principle should typically apply. See P.-M. Dupuy, “Le principe de précaution, règle
émergente du droit international général”, supra note 4, at 108-110. See also: A. A-Khavari & D.R.
Rothwell, “The ICJ and the Danube Dam Case: A Missed Opportunity for International Environmental
Law”, supra note 60, at 529-530.
63
Danube Dam Case, par. 40.
64
The Court relies on the state of necessity defense as recognized by the International Law Commission
(ILC) in the Draft Articles on State Responsibility, which reads at article 33: 1. “A state of necessity may
not be invoked by a State as a ground for precluding the wrongfulness of an act of that State not in
conformity with an international obligation of the State unless: (a) the act was the only means of
safeguarding an essential interest of the State against a grave and imminent peril; and (b) the act did not
seriously impair an essential interest of the State towards which the obligation existed. 2. In any case, a
62
16
considered there was no sufficient proof submitted before the Court in the present case as
to the reality, the magnitude and the certainty of the threat invoked65. The defense could
not be accepted as the strict conditions imposed for its recognition were not met,
especially the presence of a “grave and imminent peril”66.
The Court reviewed the evidence submitted by both parties and considered that the
dangers invoked by Hungary remained uncertain and mostly of a long-term nature, and
that therefore they were not “imminent”67. Consequently, the Court found that “Hungary
was not entitled to suspend and subsequently abandon, in 1989, the works on the
Nagymaros Project and on the part of the Gabcikovo Project for which the 1977 Treaty
and related instruments attributed responsibility to it”68. The Court also decided that the
unilateral conduct of Slovakia in putting into operation its solution constituted an
internationally wrongful act69. Finally, the Court rejected Hungary's claim that it was
state of necessity may not be invoked by a State as a ground for precluding wrongfulness: (a) if the
international obligation with which the act of the State is not in conformity arises out of a peremptory norm
of general international law; or (b) if the international obligation with which the act of the State is not in
conformity is laid down by a treaty which, explicitly or implicitly, excludes the possibility of invoking the
state of necessity with respect to that obligation; or (c) if the State in question has contributed to the
occurrence of the state of necessity.” See, Danube Dam Case, par. 50. For the original version of the
article, see ILC, “Draft Articles on State Responsibility” [1980] 2 Yearbook of the International Law
Commission; Part Two 33, art. 33; for the current version, see ILC, “Responsibility of States for
internationally wrongful acts” (2001), annexed to the UNGA resolution 56/83, 28 January 2002.
65
Danube Dam Case, par. 57.
66
As the Court explained at par. 54: “Hungary on several occasions expressed, in 1989, its ‘uncertainties’
as to the ecological impact of putting in place the Gabcikovo-Nagymaros barrage system, which is why it
asked insistently for new scientific studies to be carried out. The Court considers, however, that, serious
though these uncertainties might have been they could not, alone, establish the objective existence of a
‘peril’ in the sense of a component element of a state of necessity. The word ‘peril’ certainly evokes the
idea of ‘risk’; that is precisely what distinguishes ‘peril’ from material damage. But a state of necessity
could not exist without a ‘peril’ duly established at the relevant point in time; the mere apprehension of a
possible ‘peril’ could not suffice in that respect. It could moreover hardly be otherwise, when the ‘peril’
constituting the state of necessity has at the same time to be ‘grave’ and ‘imminent. ‘Imminence’ is
synonymous with ‘immediacy’ and ‘proximity’ and goes far beyond the concept of ‘possibility’ […] That
does not exclude, in the view of the Court, that a ‘peril’ appearing in the long term might be held to be
‘imminent’ as soon as it is established, at the relevant point in time, that the realization of that peril,
however far off it might be, is not thereby any less certain and inevitable”.
67
The materialization of some of the risks would depend on the terms of operation of the dam in peak
mode, which were not determined at the time Hungary decided to suspend and abandon the work. As to the
lowering of the riverbed and the threat to the supply of drinking water in Budapest, the Court noted that the
peril invoked had materialized for a number of years prior to 1989 when the work was abandoned. In fact,
the bed of the Danube had already been deepened prior to 1980 to extract building materials and the depth
required by the treaty was at that moment already attained. The risks in that respect did not entirely
emanate from the new project. Furthermore, the Court considered that Hungary had other means available
to it to respond to the dangers it apprehended, such as regularly discharging gravel into the river
downstream of the dam, processing the river water in an appropriate manner to ensure its quality as
drinking water, and controlling the distribution of the water between the bypass canal, the old bed of the
Danube and the side-arms: See, Danube Dam Case, pars. 55-57.
68
Ibid., par. 59.
69
It could not be justified as a countermeasure since the diversion of the Danube carried out by
Czechoslovakia was depriving Hungary of its right to an equitable and reasonable share of the natural
resources of the Danube. The countermeasure invoked by Slovakia failed to respect the proportionality that
is required by international law, ibid., pars. 72-88.
17
entitled to terminate the treaty in 1992, due to a fundamental change of circumstances70.
Consequently, the Court declared that the Treaty of 1977 was still valid between Slovakia
and Hungary and that both Parties would have to seek agreement on the terms of
execution of the judgment. In that respect, the Court proceeded to determine what the
future conduct of the Parties should be.
It is in that part of the decision that the Court makes its most explicit references to
international environmental law. In enjoining the Parties to negotiate and reach an
agreement as to the way the Project should be carried out, the Court mentions the
necessity to pursue the multiple objectives of the Treaty in a joint and integrated way, as
well as the standards of international environmental law and the principles of the law of
international watercourses. In a well-known passage of its decision, the Court recognizes
that “[t]his need to reconcile economic development with protection of the environment
is aptly expressed in the concept of sustainable development”71.
In clarifying that situations of scientific uncertainty as regards risks should not lead to the
application of the defense of “ecological necessity”, the Court excluded the possibility of
invoking in the future the precautionary principle in that context. In a separate opinion
perceived by some as “a breath of fresh air”72, Judge Weeramantry relies most
exclusively on principles of international environmental law and gives significant
meaning in particular to the concept of sustainable development73. For two authors, the
Danube Dam decision leads to the conclusion that “[…] rather than being a leader in the
development of international environmental law, […] the [ICJ] will be more of a
commentator with only occasional separate or even dissenting opinion having the
potential to have a major impact on the development of the law”74.
It should be remembered though that the International Court of Justice may not be well
equipped to deal with highly technical matters involving the analysis of scientific data, as
was the case in the Danube Dam litigation75. The Court”s reliance on treaty law to solve
the dispute, instead of invoking other sources that would have appeared more “modern”
in the circumstances, can be explained in part by the conservative stance the Court
usually takes in its judgments. It can also be explained by the fact that the Parties
themselves did put great emphasis on treaty law in the proceedings. As for the
precautionary principle, the decision was rendered in 1997, only five years after its
70
Ibid., pars. 104-115. Hungary had argued that several events cumulatively constituted that change of
circumstances: the profound change of a political nature due to the fall of the communist regimes, the
Project’s diminishing economic viability, the progress of environmental knowledge and the development of
new standards and prescriptions of international environmental law. None of these was retained by the
Court as a justification for unilaterally terminating the Treaty.
71
Ibid. pars. 140-141.
72
A. A-Khavari & D.R. Rothwell, “The ICJ and the Danube Dam Case: A Missed Opportunity for
International Environmental Law”, supra note 60, at 535.
73
Separate opinion of Vice-President Weeramantry, Case Concerning the Gabcikovo-Nagymaros Project
(Hungary v. Slovakia), Judgment, I.C.J. Reports 1997, 88.
74
A. A-Khavari & D.R. Rothwell, “The ICJ and the Danube Dam Case: A Missed Opportunity for
International Environmental Law”, supra note 60, at 536.
75
C.P.R. Romano, The Peaceful Settlement of International Environmental Disputes. A Pragmatic
Approach, supra note 60, at 259-260.
18
inclusion in the Rio Declaration. In retrospect, this would have made very short notice
for a more formal recognition of it by the Court.
In any event, the silence of the ICJ regarding the precautionary principle and its status in
the Danube Dam Case had great consequences a few months later, in the Hormones Case.
In that case, the WTO’s Appellate Body76 refused to consider the precautionary principle
as a rule of customary law, relying instead on the specific text of the SPS Agreement and
the more restrictive approach to precaution it contains to invalidate the ban taken by the
EC over the import of certain meat and meat products containing allegedly carcinogenic
substances. That prohibition of imports affected particularly cattle breeders in Canada
and the U.S.A. where the incriminated substances were administered to farm animals as
growth promoters. Those two States filed a claim at the WTO against the measure taken
by the EC, pretending it established an unjustified discrimination against the imports of
meat and meat products from their countries and constituted a disguised restriction to
international trade. The Appellate Body relied primarily on the wording used in the SPS
Agreement77 to reject the European arguments to the effect that the measure was
necessary to protect the health of its population and was as such justified by article 3 (3)
of that Agreement78. The Appellate Body considered that the EC measure did not meet
the strict conditions imposed by the SPS Agreement, as insufficient scientific evidence
had been presented to support its validity79. No adequate risk assessment had been
performed to establish the so-called risks generated by the use of the substances, as
requested in particular by articles 5 (1) and 2 (2) of the SPS Agreement80. The EC
measure was therefore considered inconsistent with the requirements of Article 5 (1)81.
In that case, the precautionary principle was invoked by the EC in an attempt to overlook
the clear wording of the SPS Agreement in regard to the necessity of scientific
justifications. For the EC, any doubt raised by a dissenting opinion in the scientific
community as to the existence of a risk could trigger the application of the precautionary
76
Two panels composed of the same three persons rendered their reports on August 18, 1997: EC Measures
concerning Meat and Meat Products (Hormones), Complaint by the United States, WT/DS26/R/USA, and
Complaint by Canada, WT/DS/R/CAN. The European Communities, the United States and Canada
appealed from certain issues of law and legal interpretations in the Panel Reports. The Appellate Body
rendered its report on January 16, 1998.
77
Agreement on the Application of Sanitary and Phytosanitary Measures, Marrakech, April 1994.
78
This article reads as follows: “Members may introduce or maintain sanitary or phytosanitary measures
which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures
based on the relevant international standards, guidelines or recommendations, if there is a scientific
justification […]”.
79
The scientific reports presented by the EC as evidence indicated to the contrary that the substances were
without risk if administered correctly: EC Measures concerning Meat and Meat Products (Hormones),
supra note 59, at 84; for a commentary, see M. Arbour, “Le principe de précaution dans le contexte du
commerce international: une intégration difficile”, (2002) 43 Cahiers de droit 5 at 32.
80
Article 5 (1): “Members shall ensure that their sanitary or phytosanitary measures are based on an
assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking
into account risk assessment techniques developed by the relevant international organizations”; article 2(2):
“Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to
protect human, animal or plant life or health, is based on scientific principles and is not maintained without
sufficient scientific evidence, except as provided for in paragraph 7 of Article 5”.
81
EC Measures concerning Meat and Meat Products (Hormones), supra note 59, at 85.
19
principle and justify a measure of protection. The EC argued that the precautionary
principle had become a rule of international customary law or a general principle of law
that would transcend the text of the Agreement. The Appellate Body, without denying
the importance the precautionary principle might have gained in international
environmental law, refused to make any pronouncement as to its status within the norms
of international law” Citing abundant authorities, it explained:
“The status of the precautionary principle in international
law continues to be the subject of debate among academics,
law practitioners, regulators and judges. The precautionary
principle is regarded by some as having crystallized into a
general principle of customary international environmental
law. Whether it has been widely accepted by Members as a
principle of general or customary international law appears
less than clear.
We consider, however, that it is
unnecessary, and probably imprudent, for the Appellate
Body in this appeal to take a position on this important, but
abstract, question. We note that the Panel itself did not
make any definitive finding with regard to the status of the
precautionary principle in international law and that the
precautionary principle, at least outside the field of
international law, still awaits authoritative formulation”82.
Nevertheless, this decision must not be regarded as a total rejection of the precautionary
principle. Quite to the contrary, the Appellate Body in fact took great care in trying not
to limit its own possibilities of using the principle as an interpretive tool if necessary in
the future. Firstly, it recognized that the SPS Agreement does incorporate the
precautionary principle through article 5 (7), as regards to temporary restrictions to trade
for the protection of human, animal or plant health83. It also acknowledged the fact that
different populations may have different levels of tolerance towards risks. Therefore, the
decision of a State to impose a sanitary or phytosanitary measure that is more protective
than what is recommended by international standards or by other Member States must not
be perceived in itself as discriminatory or as a disguised restriction on international
trade84. Finally, when commenting the “reasonable relationship” that must exist between
82
Ibid., at 47 (emphasis in the original text).
Article 5 (7) reads as follows: “In cases where relevant scientific evidence is insufficient, a Member may
provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information,
including that from the relevant international organizations as well as from sanitary or phytosanitary
measures applied by other Members. In such circumstances, Members shall seek to obtain the additional
information necessary for a more objective assessment of risk and review the sanitary or phytosanitary
measure accordingly within a reasonable period of time”.
84
“We do not attribute the same importance as the Panel to the supposed multiple objectives of the
European Communities in enacting the EC Directives that set forth the EC measures at issue. The
documentation that preceded or accompanied the enactment of the prohibition of the use of hormones for
growth promotion and that formed part of the record of the Panel makes clear the depth and extent of the
anxieties experienced within the European Communities concerning the results of the general scientific
studies (showing the carcinogenicity of hormones), the dangers of abuse (highlighted by scandals relating
83
20
the SPS measure and the risk assessment, the Appellate Body stated that the measure
does not necessarily need to be based on scientific “mainstream” opinion but may as well
be based on the opinion of scientists taking a divergent view. It explains:
“Article 5.1 does not require that the risk assessment must
necessarily embody only the view of a majority of the
relevant scientific community. In some cases, the very
existence of divergent views presented by qualified
scientists who have investigated the particular issue at hand
may indicate a state of scientific uncertainty. Sometimes
the divergence may indicate a roughly equal balance of
scientific opinion, which may itself be a form of scientific
uncertainty. In most cases, responsible and representative
governments tend to base their legislative and
administrative measures on ‘mainstream’ scientific opinion.
In other cases, equally responsible and representative
governments may act in good faith on the basis of what, at
a given time, may be a divergent opinion coming from
qualified and respected sources”85.
In its Report, the Appellate Body added that divergent opinions within the scientific
community might be particularly important to consider when the risk involved is life
threatening and is perceived to constitute a clear and imminent threat to public health and
safety86. As argued in the following section, this statement could be interpreted as
opening the door to protective measures taken against the potential threats posed by
GMOs released into the environment or present in human and animal food.
2.2
GMOs and risks to the environment: a definite need for precaution
Arguably, the whole discussion about the status conferred to the precautionary principle
within the norms of international law remains interesting because conflicts involving
competing versions of precaution are likely to increase. If the precautionary principle is
ever declared to be a rule of customary law by an international tribunal, this decision
could change the outcome of a conflict between precautionary measures taken for the
sake of the environment or human health and international treaty obligations in the field
of commercial law. Two valid international obligations – one resulting from customary
to black-marketing and smuggling of prohibited veterinary drugs in the European Communities) of
hormones and other substances used for growth promotion and the intense concern of consumers within the
European Communities over the quality and drug-free character of the meat available in its internal market.
[…] We are unable to share the inference that the Panel apparently draws that the import ban on treated
meat and the Community-wide prohibition of the use of the hormones here in dispute for growth promotion
purposes in the beef sector were not really designed to protect its population from the risk of cancer, but
rather to keep out US and Canadian hormone-treated beef and thereby to protect the domestic beef
producers in the European Communities”, ibid., at 98-99.
85
Ibid., at 79.
86
Ibid.
21
law and the other resulting from treaty law – would then have to be weighed against one
another. If possible, they would need to be interpreted and applied in a way as to give
meaning to both. For instance, in a case where a precautionary measure restricting the
commercial flow of a product would be both temporary and based on scientific
justifications, there are good chances it could be considered valid under the exception to
the circulation of products created by paragraph 5.7 of the SPS agreement.
The conflict would be more acute if the commercial restriction does not appear justified
under the wording of the commercial law treaties such as in the case of a permanent
measure of containment based on fear of a potential threat emanating from a product or
substance. If that fear is not substantiated by scientific findings sufficient to constitute an
exception under the trade law treaties, the real conflict arises, insofar as a rule of
customary law would validate the adoption of precautionary measures under that
particular set of circumstances. In other words, the precautionary principle as recognized
by customary international law could very well be more generous in terms of the
protection it offers against potential risks to the environment and the human health than
the “watered down” version so far accepted as a restriction under commercial law
treaties. Which rule of international law would prevail in such a situation, the one
established by custom or the one negotiated through a multilateral trade agreement?
In terms of possible conflicts between different versions of the precautionary principle at
the international level, the issue seems more likely to arise through litigation concerning
the confrontation of two treaties, a commercial treaty for one part and a multilateral
agreement for the protection of the global environment for the other part. As previously
seen, those situations will become more frequent as several multilateral treaties including
versions of the precautionary principle have recently come into effect or will do so in the
very near future87. What would then be the outcome of the conflict, if one party pretends
that the restriction imposed on a product for the protection of the environment or human
health is justified under the environmental treaty, as the other party argues that the
restrictive measure does not qualify as an exception to the rules of international trade
law? Once again, in the face of scientific uncertainty, two different formulations of the
precaution principle could collide, eventually forcing an international jurisdiction – most
likely established under the WTO dispute resolution procedure – to decide whether in
that particular case it would rather ensure protection of the environment over the
liberalization of trade, or the contrary.
Of course, in the event litigation arises between Parties to a trade law agreement and a
multilateral environmental agreement, the court or panel should first try to reconcile both
treaties in order to avoid the conflict in the first place. For instance, the court could
interpret the two confronted instruments as providing for the same kind of trade
restrictive measures should a potential threat to the environment exist. If a uniform
interpretation were not possible, the jurisdiction would then need to give priority to one
treaty over the other, and to one vision of precaution over the other. In the absence of any
87
See supra Part 1.
22
hierarchy set out by the treaties themselves88, the court or panel would probably be
required to apply general rules of international law relating to the interpretation of treaties
(the newest treaty over the oldest one, and the specific treaty over the general one) 89.
Arguably, if both parties were really committed to the protection of the global
environment, this could become a non-issue, as litigation would not be likely to arise. If
conflits occur anyway, in most cases they should be resolved in favour of the protection
of the environment. As one author affirms : “this is perhaps the most obviously resolved
issue in the entire spectrum of conflicts between trade and the environment”90.
The situation becomes trickier when the trade law conflict originates from a restrictive
measure decided unilaterally by a State to protect its environment or the health of its
people. If a multilateral treaty relating to the protection of the environment or health does
not otherwise permit the measure of containment, its validity as a restriction to trade law
rules will be determined pursuant to the trade law treaty (provided both Parties have
ratified the treaty). For example, this was the case in the Hormones litigation. If the
measure is taken pursuant to a multilateral environmental agreement to which the
claimant in the trade law conflict is no Party, technically, the conflict should be resolved
under the treaty that applies to both Parties to the litigation, meaning the trade law
agreement. In such a case, it could be argued that the MEA Party is defending an
obligation erga omnes that should prevail over the trade law rules. As discussed before,
it could also be argued that a customary rule of international law could emerge so as to
justify the containment measure under a more generous version of the precautionary
principle as the one set out in the trade law regime. A final option for harmonizing
environmental considerations and trade law rules would involve an evolution of the
precautionary principle through the interpretation given to trade law exceptions by the
WTO panels/Appellate Body. The Appellate Body made clear in the Hormones case that
all possibilities of integrating the precautionary principle through judicial interpretation
of the trade law treaties as they are presently drafted might not have been exhausted so
far91.
88
For example, article 104 of NAFTA (North American Free Trade Agreement) provides for the
prevalence of certain MEAs (Basel Convention, CITES and Montreal Protocol) and two bilateral
agreements over trade obligations resulting from the commercial treaty, as long as the party invoking this
exception chooses the alternative that is the least inconsistent with the provisions of the trade law treaty. It
has been argued though that the protection offered by article 104 is ineffective: see J.H. Knox, “The
Judicial Resolution of Conflicts between Trade and the Environment” (2004) 28 Harvard Environmental
Law Review 1 at 17-19. The Cartagena Protocol contains in its preamble specific clauses attempting to give
precedence to it over other treaties, with more than ambiguous results: see S. Safrin, “Treaties in Collision?
The Biosafety Protocol and the World Trade Organization Agreements” (2002) 96 American Journal of
International Law 606. So far the attempts to include within the WTO agreements a formal recognition of
the prevalence of certain multilateral environmental agreements over trade rules have proven unsuccessful:
see T.J Daemen, “The European Community’s Evolving Precautionary Principle – Comparisons with the
United States and Ramifications for Doha Round Trade Negotiations” (2003) European Environmental
Law Review 6 at 18-19; see also, J.H Knox at 26-29.
89
S. Safrin, ibid., at 613.
90
See Knox, “The Judicial Resolution of Conflicts between Trade and the Environment”, supra note 88, at
75.
91
See EC Measures concerning Meat and Meat Products (Hormones), supra note 59, at 48.
23
Those three possibilities could very well be invoked or at least discussed in the upcoming
litigation between three GMO producer countries (Argentina, Canada and the U.S.A.)
and the EU over the trade restrictive measures taken in the EU to limit the
commercialization of GM foods and crops92. We are of the opinion that this litigation is
more likely to find solution by extending the precautionary principle as presently
recognized in the SPS agreement93.
In no other battle than the one surrounding the release into the environment of genetic
seeds and the commercialization of genetic seeds and food has the conflict caused by the
management of risks and the introduction of the precautionary principle been more acute.
A prudent attitude towards uncertain risks has led the European Communities to adopt
the precautionary principle in the management of the risks posed by GM food and seeds.
This situation first materialized as a moratorium concerning new authorizations of such
technologies, as long as structures designed for a more complete evaluation of the risks
involved were not properly put in place94. This has been done by new legislations
adopted by the EC95, which have permitted the lift of the ban. Nevertheless, the
procedure chosen by the Europeans to evaluate and manage the risks of GMOs reflects a
very cautious attitude towards risks. For example, a new GM seed would be authorized
for the deliberate release into the environment and the “placing in the market” in the EC
only after the applicant manufacturer has demonstrated to the satisfaction of the
competent authorities the “safety” or “lack of harm” of his product 96. The proof of the
92
Argentina, Canada and the U.S.A. asked for the constitution of a WTO panel on August 8, 2003: see
Documents WT/DS291/23 and WT/DS293/17. The panel was constituted on August 29, 2003: document
WT/DSB/M/155.
93
For a technical analysis of how the conflict between trade law rules and the EC regulation on the labeling
of GM food could be resolved, see in particular: M.M Compton, “Applying World Trade Organization
Rules to the Labeling of Genetically Modified Foods”, (2003) 15 Pace International Law Review 359.
94
See M. Lee, “Regulatory Solutions for GMOs in Europe: The Problem of Liability”, (2003) 12 Journal of
Environmental Law and Practice 311 at 312.
95
See in particular: Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001
on the deliberate release into the environment of genetically modified organisms, O.J. 2001, L 106/1;
Regulation No 258/97 of the European Parliament and of the Council of 27 Jan. 1997 concerning novel
foods and novel food ingredients, O.J. 1997, L 43/1; Regulation (EC) No 1829/2003 of the European
Parliament and of the Council, of 22 Sept. 2003, on genetically modified food and feed, O.J. 2003, L 268/1.
96
See T. Christoforou, “The Regulation of Genetically Modified Organisms in the European Union: The
Interplay of Science, Law and Politics”, (2004) 41 Common Market Law Review 637 at 646. The author
explains the appropriate level of protection chosen by the E.C. in the Directive 2001/18 in those terms: “A
combined reading of several provisions of the Directive indicates that its aim is to achieve ‘a high level of
safety for the general population and the environment’. […] It should be noted that the Directives refers to
‘the risk’ or ‘a risk’, without qualifying adjectives such as ‘serious’ or ‘irreversible’. It is significant that the
regulatory action is to be based on the precautionary principle which in this case, according to Article 4(1)
of the Directive, requires Member States to ensure that ‘all appropriate measures are taken to avoid adverse
effects on human health and the environment which might arise from the deliberate release or the placing
on the market of GMOs’. The use of the terms ‘to avoid’ and ‘might arise’ in this context imply (sic) that
there is no tolerance of identified risk. The concept of risk in this context is also very wide and covers ‘any
direct or indirect, immediate, delayed or unforeseen effects on human health or the environment.’ It is
important to note that the environmental risk assessment must also take account ‘of potential long-term
effects associated with the interaction with other organisms and the environment’. In addition, Annex II to
the Directive 2001/18 clarifies that the analysis should examine ‘the cumulative long-term effects’ relevant
24
complete absence of risk being scientifically impossible, the European Commission
stated in its Communication on the precautionary principle that precautionary measures
may be adopted when there are “reasonable grounds for concern” or when there are
“valid reasons to consider” that there may be a risk97. The legitimate desire of the
European populations to know what they are eating and their willingness to exercise
appropriately their right to choose, has also led to the adoption of a regulation imposing a
mandatory system for the traceability and labelling of GMOs and GM products98.
Helped by a strong European position, the precautionary principle was also incorporated
into the procedures designed to evaluate and manage the risks posed by the
transboundary movements of living modified organisms (LMOs) (at the present, mainly
seeds and grains) through the Cartagena Protocol99. Pursuant to that multilateral
instrument, a country (“party of import”) could decide to refuse the transboundary
movement of LMOs onto its territory if there is a lack of scientific certainty as to the
existence and magnitude of the risks involved, either to health or the environment.
However, the party of import must proceed with a risk assessment in accordance with
article 15 before taking a decision100. Even though scientific justification appears central
in the decision of the importing State, as the assessment must be carried out in a
“scientifically sound manner”, the parties to the Protocol have also recognized the fact
that the collection of sufficient data concerning the risks posed by LMOs is not always
possible. In that regard, Annex III to the Protocol states that: “[l]ack of scientific
knowledge or scientific consensus should not necessarily be interpreted as indicating a
particular level of risk, an absence of risk, or an acceptable risk”101. In the end, the
importing country must take a decision to authorize or refuse the transboundary
movement onto its territory and, as stated by Article 10, paragraph 6 : “[l]ack of
scientific certainty due to insufficient relevant scientific information and knowledge
regarding the extent of the potential adverse effects of a living modified organism on the
conservation and sustainable use of biological diversity in the Party of import, taking also
into account risks to human health, shall not prevent that Party from taking a decision, as
to the release and the placing on the market of the GMOs. Therefore, the level of protection chosen in the
Directive is a level of no risk […]” at 645-646.
97
See European Commission, Communication on the Precautionary Principle, COM (2001) 1 final, 2
February 2000, online: www.ue.eu.int/en/Info/eurocouncil/index.htm (date accessed: 25 January 2005).
98
Regulation (EC) No 1830/2003 of the European Parliament and of the Council, of 22 September 2003,
concerning the traceability and labeling of genetically modified organisms and the traceability of food and
feed products produced from genetically modified organisms and amending Directive 2001/18/EC, O.J.
2003, L 268/24.
99
See supra Part 1.
100
Article 15 reads as follows: “1. Risk assessments undertaken pursuant to this Protocol shall be carried
out in a scientifically sound manner, in accordance with Annex III and taking into account recognized risk
assessment techniques. Such risk assessments shall be based, at a minimum, on information provided in
accordance with Article 8 and other available scientific evidence in order to identify and evaluate the
possible adverse effects of living modified organisms on the conservation and sustainable use of biological
diversity, taking also into account risks to human health 2. The Party of import shall ensure that risk
assessments are carried out for decisions taken under Article 10. It may require the exporter to carry out
the risk assessment. 3. The cost of risk assessment shall be borne by the notifier if the Party of import so
requires.” See Cartagena Protocol, supra, note 23.
101
Ibid., Annex III, art. 4.
25
appropriate, with regard to the import of the living modified organism in question […] in
order to avoid or minimize such potential adverse effects”.
One difficult question that remains unanswered is whether or not the Cartagena Protocol
allows a Party to refuse the transboundary movement of LMOs in the case of an
apprehension or fear of a risk for which there is no scientific evidence. It can be argued
that the European position, in clearly separating the assessment from the management of
the risk, can lead to a restrictive decision toward an LMO in a situation of “ignorance”.
As one author puts it, “there is always a possibility that outcomes never considered might
arise”102. It has been said that the precautionary principle should not be invoked in
situations of ignorance, as this “would transform it from a tool for decision-making to a
tool to prevent decision-making”103. On the other hand, it is also recognized that
precaution can be a responsible answer to a risk whenever science and risk assessment
have met their own limitations: “ignorance” should be distinguished from
“indeterminacy”. Scientific knowledge comes by “freezing” the surrounding context of
risk or uncertainty and making pre-analytical assumptions that may or may not be
valid104. In other words, precautionary measures could be the answer when indeterminacy
remains important, even after the realization of a risk assessment. Arguably, this will
often be the case concerning the risks posed by GM seeds to the related species and other
components of biodiversity, as the “chain reaction” that could be the end result of their
release into the environment appears so unpredictable.
The wording used in the Cartagena Protocol seems to allow for a clear distinction
between the two phases of assessment and management of risk. In case of indeterminacy
of a risk, it certainly can be argued that the Protocol “[recognizes] that decision-making
is, ultimately, based not only on scientific information but also on value judgments and
other considerations that may vary widely among countries and regions”105.
The conflict between that approach and the one advocated so far by the WTO Appellate
Body - the necessity of a scientific justification involving more than a mere apprehension
for permanent measures restricting the commerce - will need to be resolved in the future.
In the particular claim of the three GMO producer countries – Canada, USA and
Argentina - against Europe, chances are the arguments will be analyzed under the trade
law agreements instead of the Cartagena Protocol since the three countries are not parties
to the latest instrument. The scope of this chapter does not allow for a detailed evaluation
of that particular conflict. Our comments will be limited to general considerations only.
Or: “we don’t know what we don’t know”: R. Briese, “Precaution and Cooperation in the World Trade
Organization: An Environmental Perspective”, supra note 5, at 125.
103
Ibid.
104
Ibid.
105
R. Hill, S. Johnston & C. Sendashonga, “Risk Assessment and Precaution in the Biosafety Protocol”
(2004) 13 R.E.C.I.E.L. For a detailed analysis of the possible conflicts in the interpretation of the
Cartagena Protocol and WTO agreements, see: S. Safrin, “Treaties in Collision? The Biosafety Protocol
and the World Trade Organization Agreements”, supra note 88. For an analysis of the precautionary
principle as formulated in the Cartagena Protocol, see: M. Böckenförde, “The Operationalization of the
Precautionary Approach in International Environmental Law Treaties – Enhancement of Façade Ten Years
after Rio? (2003) 63 Z.a.ö.R.V. 313.
102
26
It is hoped that when confronting the trade law rules with the particular risks posed by
GMOs, the WTO panel/Appellate Body will be inclined to adopt a more generous version
of the precautionary principle, one that would consider legitimate at least some of the
restrictive measures adopted by the EC. As discussed previously, the precautionary
principle has been shaped in domestic and international environmental law to deal
primarily with those uncertain risks that emerge in the most dramatic of situations, that is
those of potentially grave and irreversible damages. In the case of GMOs, the potential
of grave and irreversible damages, particularly to the biodiversity, is combined with the
difficulty science has in predicting or confirming the existence of the risk, due to a lack
of data. Given these circumstances, it appears reasonable that if a population is unwilling
to take unnecessary risks, its will should be respected. Restrictive measures towards
GMOs should be safeguarded in the name of precaution, even if they are not designed to
be temporary and if the scientific justifications for them appear thin. The potential risks
posed by GM seeds and food command the application of a strong version of the
precautionary principle.
In conclusion, it can be instructive to review some of the turmoil that has emerged on the
Canadian agricultural scene in recent years due to the massive use of GM crops on
Canadian soil106. At the international level, Canada is one of the most active promoters along with the USA – of the use of biotechnologies in agriculture. The claim filed
against the EC certainly comforts that position. At home though, the Canadian
government is facing growing opposition by its population that condemns the ease with
which biotechnologies are introduced in Canada. Well-respected institutions – including
government agencies – have published studies that point out to the possible long-term
damages to biodiversity that could result from the use of GM seeds in agriculture107.
Those studies denounce the application made in Canada of the concept of substantial
equivalence in the authorization procedure towards GMOs and support the idea of
incorporating elements of the precautionary principle into that procedure108. Another
issue which is highly debated in Canada is the labeling of GM food which is not
mandatory at the moment, despite the fact that Canadian consumers would prefer
deciding for themselves what they should and should not eat109. Finally, it becomes more
and more obvious for the ordinary Canadian that the risks to the environment resulting
from the introduction of GM seeds have been underestimated in Canada, despite
See B. Mandrusiak, “Playing with Fire – The Premature Release of Genetically Engineered Plants into
the Canadian Environment”, (1999) 9 Journal of Environmental Law and Practice 259.
107
See in particular Royal Society of Canada, “Elements of Precaution : Recommendations for the
Regulation of Food Biotechnology in Canada” Report of the Expert Panel on the Future of Food
Biotechnology,
Ottawa,
2001,
online:
:
www.rsc.ca//files/publications/expert_panels/foodbiotechnology/GMreportEN.pdf (date accessed: 29
January 2005); Canadian Biotechnology Advisory Committee, “Improving the Regulation of Genetically
Modified Foods and Other Novel Foods in Canada”, Report to the Government of Canada Biotechnology
Ministerial Coordinating Committee, Ottawa, 2002, online: http://cbac-cccb.ca/epic/internet/incbaccccb.nsf/vwapj/cbac_report_e.pdf/$FILE/cbac_report_e.pdf (date accessed 29 January 2005).
108
Ibid.
109
Ibid.
106
27
reassurances from the Canadian government, the biotechnology industry and their
experts.
Two major litigations involving lands contaminated by the accidental “drift” of
genetically modified seeds have been the object of much media attention in Canada. The
fierce battle one farmer from Saskatchewan led against multinational biotechnology giant
Monsanto in a suit for patent infringement has been reported internationally110. In a
divided judgment, the Supreme Court of Canada decided in favor of Monsanto against
Schmeiser111, but many commentators have pointed out the necessity to modify patent
law as it now stands in Canada as well as in the United States in order to protect farmers
against such suits when GM crops have contaminated their lands112. Another litigation
not yet decided involves a class action by certified organic farmers from Saskatchewan
suing two biotechnology companies for damages resulting from the widespread
contamination of their crops by GM canola cultivated in neighboring farms 113. The
organic farmers also asked for an injunction to prevent the commercial introduction of
GM wheat in Saskatchewan. There has been a growing movement of Canadian farmers –
organically certified or not - opposed to the development of varieties of GM wheat.
Those farmers are afraid of losing their export markets should GM wheat be introduced
on Canadian soil. In reaction, Monsanto decided last summer to withdraw its demand for
the approval of a variety of GM wheat that was being examined by the appropriate
Canadian government agencies114.
Such litigations and events do not directly involve the precautionary principle. However,
their existence illustrates the fact that the introduction of GM seeds into the environment
is not an innocent act. They give a more global idea of the judicial, social and economic
consequences of releasing GMOs into the environment. Above all, in our view, they
stress the urgent need to introduce the precautionary principle into the authorization
process towards GMOs, in both producer and non-producer countries.
See for example this French article: H. KEMPF, “Un rebelle contre les OGM – Un agriculteur de la
Saskatchewan tient tête à la multinationale Monsanto”, Journal Le Monde, as edited by Le Devoir, 19
octobre 2002 at B3.
111
Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902. For an analysis of this case, see: K. Garforth,
H. Subramaniam, A. Dalvi & B. Cuber, “Case Note; Supreme Court of Canada 21 May 2004, Percy
Schmeiser and Schmeiser enterprises Ltd v. Monsanto Canada Inc. and Monsanto Company” (2004) 13
R.E.C.I.E.L. 340.
112
See for example H. Preston, “Drift of Patented Genetically Engineered Crops: Rethinking Liability
Theories”, (2003) 81 Texas Law Review 1153; J.M. Glenn, “Genetically Modified Crops In Canada:
Rights and Wrongs”, (2003) 12 Journal of Environmental Law and Practice 281. For a different opinion,
see: N. Siebrasse, “The Innocent Bystander Problem in the Patenting of Higher Life Forms” (2004) 49
McGill L.J. 349.
113
Hoffman et al. c. Monsanto Canada Inc. et al.,(2002) 220 Sask. R. 95 (Sask. Q. B), 2002 SKQB 190.
Some information on this litigation are available at: http://www.saskorganic.com/oapf/index.html (date
accessed 28 January 2005).
114
See H. Trudeau & C. Nègre, “La réglementation des OGM au Canada et sur la scène internationale:
similitudes et divergences” in Développements récents en droit de l’environnement (Cowansville: Editions
Yvon Blais, 2004) 1 at 19-22.
110
28
Conclusion
The purpose of this chapter was to provide an overview of both the origin and evolution
of the precautionary principle in international environmental law and the consequences
that result from its interaction with the international trade system. Even though the
precautionary principle has not yet materialized into a rule of customary law, despite
numerous formulations thereof in recent multilateral environmental treaties, its
importance is nevertheless confirmed. States are in fact taking measures to protect the
environment in the face of scientific uncertainty. Given the overall context of trade
liberalization at the international level, the conflicts likely to arise between environmental
protection and the free circulation of products need to be resolved.
International courts and tribunals – in particular the panels and the Appellate Body set out
under the WTO dispute settlement mechanism – are already contributing to the
recognition of the precautionary principle and the shaping of its status in international
law, and will most likely continue to do so in the near future. One thing appears striking
for the observer on the international scene: the evolution of the precautionary principle
has not been restrained despite discordant voices that attack its credibility and its
necessity as a legal norm. One reason that can partly explain the controversies generated
by the precautionary principle lies in the fact that its application makes a difference. As
stated by an author: “if it did not, vested interests in the status quo would not expend time
and money challenging it”115.
In an era of profound technological changes that contribute to the appearance of new
risks that may appear unmanageable, the civil society needs a reassurance that policy
makers will act responsibly. The precautionary principle offers that reassurance.
Consequently, because it probably represents the most sensible way to deal with
scientific uncertainty regarding risks, the precautionary principle seems to be here to stay.
115
J. Cameron, « Future Directions in International Environmental Law : Precaution, Integration and NonState Actors », supra note 2, at 127.
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