Precaution, Precaution Everywhere: Developing a ‘Common Understanding’ of the Precautionary Principle in the European Community
| Date | 01 March 2002 |
| Author | Elizabeth Fisher |
| Published date | 01 March 2002 |
| DOI | 10.1177/1023263X0200900102 |
| Subject Matter | Article |
Elizabeth Fisher∗
9 MJ 1 (2002) 7
Precaution, Precaution Everywhere: Developing a ‘Common
Understanding’ of the Precautionary Principle in the European
Community
There seems to be a new and very popular game called ‘precaution spotting’. The rules are
very simple – each contestant gains points for collecting examples of the precautionary
principle in different jurisdictions, whether they be national, trans-national or international.
As the principle is now quite frequently included in both international and domestic policy,
citing examples of it being mentioned in policy is probably only worth a point.1 Inclusion as
a relevant consideration in legislation or an international treaty is worth 2 points2 and as a
binding legal duty – 4 points.3 The value in points of court decisions and the official reasons
of dispute resolution bodies also varies. Passing mention of it is only worth about 3 points,4
non-binding discussion of the principle – 6 points,5 and an all out decision forcing it to be
applied is worth a hefty 10 points.6 A series of cases or a fully realized precautionary
regulatory regime are of course the greatest quarries and they are worth a whacking 20
* Tutorial Fellow in Law, Corpus Christi College, Oxford. I would like to thank an anonymous referee,
Roderick Bagshaw, Warwick Gullett, Andy Stirling and Lucia Zedner for comments on previous versions of
this paper. Any errors or omissions remain my own. This article was partly developed out of a paper that was
originally presented at the Application of the Precautionary Principle in the EU conference, Herrenberg,
Germany, 9-10 May 2001.
1. Department of the Environment, Transport & Regions, A Better Quality of Life: A Strategy for Sustainable
Development for the United Kingdom, (HMSO, 1999), 4.1 and International Maritime Organisation,
Guidelines on Incorporation of the Precautionary Approach in the Context of Specific IMO Activities,
(Resolution MEPC.67(37) adopted on 15 September 1995).
2. Loi Barnier, Loi n° 95-201 of 2nd February 1995 (France) and Art. 3(3) of the Framework Convention on
Climate Change 1992.
3. Section 391 Environmental Protection and Biodiversity Act 1999 (Australia).
4. Canadian Environment al Law Association v. The Minister of the Environment [1999] 3 FC 564 and Judgment
in case concerning the Gabcikovo-Nagymaros Project, 37 International Legal Materials (1998), 162.
5. Shirley Primary School v Telecom Mobile Communications Ltd [1999] NZRMA 66; R v. Secretary of State
for Trade & Industry, ex parte Duddridge, 7 Journal of Environmental Law (1995), 224; and International
Tribunal for the Law of the Sea, Southern Bluefish Tuna Cases (New Zealand v. Japan; Australia v. Japan)
(Provisional Measures), 38 International Legal Materials (1999), 1624.
6. Conservation Council of South Australia v. Tuna Boat Owners Association (No. 2) [1999] SA ERDC 86.
The Precautionary Principle in the European Community
8 9 MJ 1 (2002)
points each.7 The spotting of precautionary-like decision-making has its own points table
albeit awarding significantly less for each example.8 Moreover, as the cataloguing of these
different examples highlights the significant variations in how the principle is formulated,
interpreted and implemented, points are also awarded for identifying inconsistencies.
‘Precaution spotting’, is of course not just an indulgent pastime but has been carried out as
part of the general academic and policy debate concerning the precautionary principle. This
short article is a critique of ‘precaution spotting’ and shows that while the practice is highly
seductive it does not aid the development of a ‘common understanding’ of the principle.
This is because ‘precaution spotting’ has been based on the assumption that the principle is
an autonomous transplantable rule. On this basis, the variations in how it is formulated,
interpreted, and implemented suggest that the principle is either incoherent or lacking legal
content. This characterization, however, is at odds with the fact that the principle is a flexible
legal principle shaped by the surrounding legal culture. Moreover, it ignores the fact that the
principle has developed as a response to the problems created for the exercise of state
authority by scientific uncertainty. This is particularly so in the highly contentious areas of
administrative constitutionalism and constitutional sovereignty. Variation is thus due to
different legal cultures, legal issues, and disagreements about those legal issues. As such, the
development of a ‘common understanding’9 of the precautionary principle in the EC must
pay far closer attention to the role of legal cultures and questions of state authority.
Before starting a number of points should also be noted. The phrase ‘precaution’ is used here
as shorthand for the precautionary principle and is distinguishable from a non-explicit
employment of precautionary philosophy. Moreover, this article proceeds on the assumption
that the principle does have legal authority due to its inclusion in treaties and statutes as well
as its mobilization in case law. This legal focus however, does not preclude the principle
having other disciplinary dimensions.10
§ 1. Precaution and Precaution Spotting
In February 2000, the European Commission published a Communication on the
precautionary principle that sought to:
7. Vellore Citizens Welfare Forum v. Union of India (1997) 9 JEL 387 and A.P Pollution Control Board v.
Nayudu 1999 (1) UJ (SC) 426 and von Moltke, ‘The Vorsorgeprinzip in West German Environmental Policy’,
in Royal Commission of Environmental Pollution, Best Practicable Environmental Option, (HMSO, 1988),
Appendix 3.
8. Charnley and Elliott, ‘Risk Versus Precaution: Environmental Law an d Public Health Protection’, 32
Environmental Law Reporter 3 (2002), 10363.
9. Commission of the European Communities (hereafter CEC), Communication from the Commission on the
Precautionary Principle, COM(2000) 1 final, 8.
10. Treich, ‘What is the Economic Meaning of the Precautionary Principle’, 26 The Geneva Papers on Risk and
Insurance 3 (2001), 334.
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