Applicability of Precautionary Principle Reconsidered

They mention frequently the precautionary principle in relation to combatting global warming. It is said to have developed from German domestic law. This paper, from a perspective of international law, will examine its applicability considering the fundamental requirement of international law, namely, seeking a balance between different interests of sovereign States.

The core of the precautionary principle is as follows: lack of scientific uncertainty regarding occurrence of damage does not provide a reason for postponing to take measures to avoid irreversible damage and serious damage.

International law has developed the principle of prevention of international harm. “Precaution” and “prevention” are compared to each other. The principle of prevention of international harms applies to require sovereign States to take measures of avoiding damage, as long as scientific certainly, namely, predictability, accompanies to occurrence of substantial damage. It is based upon the fundamental requirement of seeking a balance between different and even conflicting interests among States.

International law is a law to regulate acts of a sovereign State which enjoys,

in principle, the freedom of act. On the one hand, international law regulates the freedom of act of a sovereign State A. On the other hand, international law prevents State B from incurring substantial damage in its territory, for instance. The requirements for the applicability of the principle of prevention of international harm function for seeking such a balance between A and B. On the one hand, A’s freedom of act is not over restricted. On the other hand, B does not endure damage of more than certain scale. This is the balance that the principle of prevention of international harm seeks.

Such a balance between the interests among sovereign States is indispensably sought for the acceptance of international law by sovereign States, and for the effectiveness of international law.

The precautionary principle must reflect this fundamental requirement for a balance of interests among sovereign States for it to be firmly established as a principle of international law. In a word, the precautionary principle never denies to seek a balance between environment and development (economy). This is the same idea as that of sustainable development. Sovereign States will accept the precautionary principle, because it admits such a balance.

Then how does the precautionary principle ensure such a balance, while it limits the freedom of act of sovereign States by requiring them to take precautionary measures even with remaining uncertainty for occurrence of harm? Here, the requirement for triggering the application of the precautionary principle comes to serious consideration. This paper will emphasize that the precautionary principle does not allow “the person who speaks up (“risk of damage”) first to win.” It will proceed as follows.

Introduction: After succinct introduction of the precautionary principle, the gist of this paper will be introduced.

Section I: The development and establishment of the principle of prevention of international harm by seeking a balance of interests among sovereign States will be explained.

Section II: The paper will make clear the inherent nature of the precautionary principle in comparison with the principle of prevention of international harm. Considering the inherent nature, it will analyze the treaty regimes on the global environmental protection where the precautionary principle typically functions. The following point is outstanding as a method of application of the precautionary principle. Under those treaty regimes, sovereign States themselves decide by consent under scientific uncertainty the timing of taking precautionary measures, which means the applicability of precautionary principle, and the contents of the precautionary measures. Such consent is fostered by the international cooperation that the treaty regimes set forth. It can be said to be a wisdom of international society that facing the scientific uncertainty, in place of making scientific judgments, the cooperation and consent of sovereign States make the precautionary principle enforceable.

Section III: Japan’s experience regarding the precautionary principle will be dealt with. Japan faced international criticism based upon the precautionary principle in the Southern Bluefin Tuna Case, and its discharge of treated water containing tritium, The latter is still going on. Considering such experience of Japan, this paper will explain the limits on the applicability of the precautionary principle. For instance, if a State convincingly proves with scientific evidence that substantial harm would not be caused by its planned act, the precautionary principle would not have any room to apply. Such a limitation is derived from the fundamental requirement of international law, namely, to seek a balance of interests of sovereign States.

Concluding Remarks: The precautionary principle is never a principle that allows “the person who speaks up (“risk of damage”) first to win.” This paper does not intend to minimize the function of the precautionary principle and deny its significance, either. Its intention is totally opposite. Its intention is totally opposite. It will examine the possibility for the precautionary principle to be firmly established as an international law, by refining the requirements for the applicability of the principle, and with seeking a balance of interests among sovereign State.