Coming to terms with precaution – On the indications and implications of a norm of precaution in international environmental law and in the law of the European Convention on Human Rights

Abstract: Although public international law is sometimes referred to as the global legal order, its various disciplines are often considered in isolation. It is therefore interesting to investigate the relationships between the disciplines, because if they are too distant, it may be hard to claim that public international law is a single legal order. The purpose of this thesis is therefore to provide an example for future discussions on the interrelationships between public international law in general and its many disciplines, especially international environmental law and international human rights law, and on the development of general norms of public international law. To provide such an example, the thesis investigates if there is a norm of precaution in the law of the European Convention on Human Rights, the ECHR, similar to or the same as the precautionary principle in international environmental law. The possibility of a general norm and the importance of terminology in that context are also discussed. The aim is not to give definite answers, but to discuss the possibilities. Initially, in section 2, the precautionary principle in international environmental law is examined through treaties, literature and case law. In short, the precautionary principle means that action to prevent environmental damage may have to be taken when there is a possible risk of such damage. For action to be required, the possible damage must not be insignificant and the measures necessary to prevent it must be proportionate. The mere fact that the existence of a risk is uncertain is not an excuse for inaction, though. The precautionary principle thus only gives rough guidelines but may be further specified by other norms to which it is applied. Its main function is to guide the interpretation of other norms in an environmentally friendly way. The precautionary principle has this effect, since the acceptance of uncertain risks as reason for action de facto means that the standard of proof is lowered and that the burden of proof may be shifted. Section 3 is devoted to the ECHR. It is noted that the European Court of Human Rights, the ECtHR, interprets the Convention inter alia so as to make the rights effective. In the interpretation it can also take account of other rules of international law applicable between the parties. Motivated by the need for effectiveness, the Court has interpreted many rights as encompassing obligations for states to prevent individuals’ rights from being infringed by other actors than the state. Thus, a norm of precaution could exist under the ECHR to ensure effectiveness. It may or may not exist because of inspiration from the precautionary principle in international environmental law. Three categories of case law of the ECtHR are reviewed, to give examples that may indicate a norm of precaution. Hence, an inductive method is used. The three categories concern state obligations under Article 2 to protect the right to life, state obligations under Article 3 to protect people from being subjected to ill-treatment (with focus on cases concerning the removal of aliens to other states), and state obligations under Article 8 to protect the rights to private and family life etc., in situations with environmental aspects. The investigated cases do indicate that there is a norm of precaution in the ECHR regime, meaning that, if it is proportionate, states may have to take precautionary measures against a risk of a violation of a right. There are many different kinds of risks which may threaten human rights, and therefore the required level of risk varies. To speak of the uncertain existence of risks (as opposed to the uncertain realisation of risks) as in international environmental law, is less suitable here, but the Court has at least accepted very tenuous risks as sufficient to require action. When comparing the norm of precaution in the ECHR regime with the precautionary principle in international environmental law, in section 4.1, it is argued that the norm of precaution is in fact one and the same in the two disciplines, requiring the same conditions to be met in order for precautionary measures to be necessary. What varies is the meaning of these conditions, due to the different contexts. These adaptations are accommodated within the boundaries of the necessary proportionality assessment, however. This is possible since the norm leaves great discretion to states (and/or judiciary) applying it. The requirement of proportionality means that the norm cannot regulate details but only give guidelines. In the speculative section 4.2, the fact that the norm of precaution is common in international environmental law and the ECHR regime and that it is motivated by the need for effective protection of the relevant interests, is considered to indicate the possibility of a general norm of precaution. A common (or general) norm is not excluded by the lack of a common term, but the use of a common term could promote the further development of the common norm and perhaps even inspire its application in other disciplines of public international law as well, since common terms can draw attention to connections which may otherwise be overlooked. Finally, it is concluded that regardless of the existence of a common norm of precaution, the investigation implies that there can be similarities between different disciplines of public international law which may not be obvious at first glance. It would be beneficial to public international law at large if such similarities were identified, since it would promote a better understanding of the true nature of public international law and its claim on being a single legal order.