Precautionary Principle

Topics: World Trade Organization, International trade, General Agreement on Tariffs and Trade Pages: 9 (2839 words) Published: April 4, 2010
Precautionary Principle

The precautionary principle was arguably developed and originally implemented in Germany and Sweden, and it is these nations that remain the leading proponents of it. For example, it was one of these nations (Germany) that put the precautionary principle on the international stage, and today with regard to environmental regulation (in particular chemicals) it is Sweden that is pushing forward precautionary legislation in the European Union. There is a conflict between those who support the principle and those who oppose it. For example, American policy-makers have become increasingly concerned with the use of the concept by the EU, seeing it as a threat to scientific risk analysis as the main tool for regulation used hitherto. Academics in the United States point out that the US had precautionary elements in their regulations during the 1970s; but these elements turned out to be excessively costly and faulty, and so were abandoned following a Supreme Court judgment in 1980 (in an infamous case concerning benzene) which insisted that regulation must depend on scientific proof of risk.

There is no one definition of the precautionary principle. One Swedish author, Per Sandin, lists 19 formulations, often individually vague and mutually contradictory.[1] The most commonly used definition is contained in the 1992 Rio Declaration, which stated that in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

One of the more rigorous analyze of the meanings of the precautionary principle have been put forward in work by Wiener and Rogers. They argue that there are three different formulations of the precautionary principle. These are:[2]

• Uncertainty does not justify inaction. In its most basic form, the precautionary principle is a principle that permits regulation in the absence of complete evidence about the particular risk scenario. [Lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation-Bergen Declaration].

• Uncertainty justifies action. This version of the precautionary approach is more aggressive.

• Uncertainty requires shifting the burden and standard of proof. This version of the precautionary principle is the most aggressive. It holds that uncertain risk requires forbidding the potentially risky activity until the proponent of the activity demonstrates that it poses no (or acceptable) risk.

In this part of the report, the precautionary principle is analyzed in the context of the World Trade Organization and with respect to: i) GATT and exceptions in Article XX, ii) the Subsidiary Agreement on Sanitary and Phytosanitary Measures (SPS), and iii) the Agreement on Technical Barriers to Trade (TBT). The precautionary principle is the focus of intense debates in the fields of food safety and GMOs, particularly in the World Trade Organization.[3] Tensions over these issues grew in 1998 after an EC moratorium based on the precautionary principle was applied to GM products from the United States, Canada and Argentina.[4] In 2003, the affected exporting countries requested the establishment of a Dispute Settlement Body by the WTO.[5] World Trade Organization (WTO)

The World Trade Organization (WTO) emerged on April 15,1994, predicated on the General Agreement on Tariffs and Trade (GATT) of 1947.[6] The reforms of this organization introduced ‘resolutions’ regarding the environment. In its preamble, it mentions the ‘objective of sustainable development’ and “seeking both to protect and preserve the environment”.[7] In 1995, the Committee on Trade and the Environment was created to promote sustainable development and to identify...

Bibliography: R. Burnett & V. Bath, Law of International Business in Australasia, The Federation Press, 2009.
J. Mo, International Commercial Law, LexisNexis Butterworths, 4th edition, 2008.
[5] Isaac, Grant E. y Kerr, William A., Genetically Modified Organisms at the World Trade Organization: A Harvest of Trouble (2003) 37 J. World Trade at 1083.
[6] Macmil l an, Fiona, WTO and the Environment, London, Sweet & Maxwel l , 2001, at 7.
[7] See preamble of Marrakech Agreement of the World Trade Organization, Annex 1A, Legal Instruments of the Uruguay Round vol.1, 33 ILM 1154 (1994).
[12] General Agreement on Tariffs and Trade (GATT), Oct. 30, 1947, 61 Stat. A-11
TIAS 1700 UNTS 194, as modified by Marrakech Agreement of the World Trade Organization, Annex 1A, Legal Instruments of the Uruguay Round vol.1, 33 ILM 1154 (1994).
[13] Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) (15 April 1994), & “WTO Agreement, Annex 1A, 69”. http://www.wto.org/english/docs_e/legal_e/15-sps.pdf.
[15] Agreement on Implementation of Article VI of the GATT, 1994. http://www.wto.org/english/docs_e/legal_e/19-adp.pdf.
[16] Grosko, Brett, “Genetic Engineering and Internacional Law: Conflict or Harmony? An analysis of the Biosafety Protocol, GATT, and the WTO Sanitary and Phytosanitary Agreement” (2001) 20 Va. Envtl. L. J. 295 at 308.
[22] EC Measures Concerning Meat & Meat Products, Panel Reports: Case WI/DS26/R/USA, August 18, 1997 & WT/DS48/R/CAN, August 18, 1997; Appellate Body Report: WT/DS26/AB/R&WT/DS48/AB/R, January 16, 1998 in supra note 115.
[30] Commission of the European Communities, “Communication of the application of the Precautionary Principle”, (2000). http://europa.eu.int/eur-lex/en/com/cnc/2000/com2000_0001en01.pdf.
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