Precautionary Action: A study on the Status and Implications of the Precautionary Principle in International Environmental Law

Abstract: In today’s society it is hard to achieve scientific certainty on how our actions might affect the environment in the future. This causes problems in legal disputes, as a state must produce evidence of harm in order to stop potentially harmful activities. One way to get around this problem might be an application of the precautionary principle, which is examined in this essay. The basic definition of the precautionary principle, which most scholars agree with, is that the principle sets lower requirements on the scientific evidence needed to oblige a state to take action for the sake of the environment. The research questions used in this essay are firstly, whether the precautionary principle has reached the status of a legally binding principle in international environmental law, and secondly, what the principle in that case entails. Throughout the study case law along with different views in doctrine have been presented and examined in relation with the requirements for a principle to become customary international law. The main findings are that there has been reluctance by international courts and tribunals to apply the precautionary principle in case law, although parties in disputes have frequently invoked it. Moreover, the principle is present in a large number of multilateral environmental agreements further strengthening its place in international environmental law. However, there are many different definitions of the principle making it hard to judge its status. There are a few main interpretations of the principle that are explored in this essay. The first interpretation states that it is simply an obligation for states to act in favour of the environment even though there is no certain scientific proof of the harmfulness of an activity. One interpretation similar to this one is that the principle gives a right to action for a state in spite of scientific uncertainty and other obligations. The more extreme interpretations have to do with the burden of proof and either suggests a lowered burden of proof, or a reversed one. Conclusively, it is clear that the precautionary principle now is a prominent feature in international environmental law, but that it cannot yet be said exactly what it entails, much due to such contrary definitions.