Precaution in multilateral environmental agreements and its impact on the World Trading System
Hélène Trudeau and Céline Nègre
Introduction
Much has been said about the precautionary principle. Despite numerous formulations of the principle in multilateral environmental treaties1 and an abundant doctrine attempting to grapple its meanings2, the principle remains vague and elusive. The content and nature of the precautionary principle give rise to considerable controversy. Many of the characteristics of this emerging legal norm are still shadowy.
This situation does not overshadow the significance the principle has gained over the years in the development of both international and domestic environmental law. In fact, the search for a “common understanding” of the precautionary principle is probably useless since a prudent attitude in the face of scientific uncertainty will manifest itself differently depending on the specific sectors and risks involved3. One thing appears sure though: the precautionary principle is undergoing a phase of normative crystallization4. It
Hélène Trudeau, Professor, Faculté de droit, Université de Montréal, Senior Research Fellow, C.I.S.D.L.. The author wishes to thank the Fondation du Barreau du Québec, the Fonds George Stellari and the Agence Universitaire de la Francophonie (AUF), for research grants that contributed to the realization of this work.
Céline Nègre, post-doctoral researcher in international law, Faculté de droit, Université de Montréal.
Coordinator, Research Group in Environment, Centre d’Études et de Recherches Internationales de l’Université de Montréal (CERIUM). The author wishes to thank the French Ministry of Foreign Affairs for research grants (bourse Lavoisier).
1 Infra, part 1.
2 See in particular: N. de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution
(Bruxelles: Bruylant, 1999) at 139-151; J. Cameron & J. Abouchar, “The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment” (1991) 14 Boston College International & Comparative Law Review 1; J. Cameron, “Future Directions in International Environmental Law: Precaution, Integration and Non-state Actors” (1996) 19 Dalhousie Law Journal 122; E. Hey, “The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution” (1992) 4 The Georgetown Int’l Envtl. Law Review 303; J.E. Hickey & V.R. Walker, “Refining the Precautionary Principle in Environmental Law” (1995) 14 Virginia Environmental Law Journal 423; O. McIntyre & T. Mosedale, “The Precautionary Principle as a Norm of Customary International Law” (1997) 9 Journal of Environmental Law 221; D. Vanderzwaag, “The Precautionary Principle in Environmental Law and Policy: Elusive Rhetoric and First Embraces” (1998) 8 Journal of Environmental Law and Practice 354; D. Freestone & E. Hey, eds, The Precautionary Principle and International Law. The Challenge of
Implementation (The Hague, London, Boston: Kluwer International Law, 1996).
3 See E. Fisher, “Precaution, Precaution Everywhere: Developing a “Common Understanding” of the
Precautionary Principle in the European Community”, (2002) 9 Maastricht Journal of European and Comparative Law 7 at 15, where the author suggests that most of the misunderstandings surrounding the precautionary principle have been based on the assumption that the principle is an autonomous rule that dictates a particular outcome in a certain set of circumstances. This assumption “is at odds with the actual legal nature of the precautionary principle and how it operates in particular contexts.”
4 See P.-M. Dupuy, “Le principe de précaution, règle émergente du droit international général” in C. Leben
& J. Verhoeven, eds, Le principe de précaution. Aspects de droit international et communautaire (Paris: Panthéon-Assas, L.G.D.J., 2002) 95 at 95; P. Birnie & A. Boyle, International Law & the Environment
has been included in an increasing number of legal instruments. Public decision-makers refer to it almost systematically in the field of environmental protection and public health when justifying measures taken in situations of scientific uncertainty as regards to risks. Even though formulations of the precautionary principle have been the object of much variations, a common point of reference can be found in Principle 15 of the 1992 Rio Declaration on Environment and Development, which reads: “[i]n 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”.
Nowadays, the debate surrounding the precautionary principle is largely perceived as relating essentially to the position it should occupy with respect to the rules of international trade. Trade represents a fundamental challenge to the precautionary principle in practical terms, as the conflicts the interaction of both gives rise to seem unavoidable. The purpose of this chapter is to present a brief review of what that interaction has been so far and how it was dealt with in situations of conflict on the international scene.
The precautionary principle finds its origins in environmental law, and as such was not fashioned with any particular regard to the body of rules regulating international trade. Although it gives rise to conflicts with international trade norms, the precautionary principle did not come into being as a response to them or to exert an influence on them. Quite to the contrary, the contours of the precautionary principle have been shaped to ensure the protection of the environment and human health under circumstances that were traditionally ignored by environmental law – situations of scientific uncertainty. Specialists in the field of environmental law and environmental protection in general developed the more specific parameters of the precautionary principle, such as the triggers in terms of scientific proof and gravity of damages. Nevertheless, as we shall see in the first section of this chapter, it cannot be said that the evolution of the precautionary principle is not linked in some ways to trade interests. This situation appears obvious when considering the influence those interests might have exercised in the drafting of the precautionary principle in several recent multilateral environmental agreements (1). In shaping the future of the precautionary principle, the role of international jurisprudence appears essential, as conflicts between competing versions of precaution will need to be resolved. The second part of this chapter addresses the issue of the status of the precautionary principle as it appears through case law at the international level. The precautionary principle is a polymorph idea with huge potential, like the concept of fault in civil law or principles of general application in public law such as the audi
alteram partem rule and the dicta against bias of public officials. In the same way those
(Oxford : Oxford University Press, 2002) at 118-121. Nevertheless some authors consider that the precautionary principle is already part of customary law. See N. de Sadeleer, Les principes du
pollueur-payeur, de prévention et de precaution, supra note 2, at 142; O. McIntyre & T. Mosedale, “The
Precautionary Principle as a Norm of Customary International Law”, supra note 2, at 223-235. See infra, part 2.
principles and concepts were given more specific substance over decades and centuries of judicial interpretation, the meaning of precaution needs to be shaped by jurisprudence, be it at the international or domestic levels. Also like general concepts and principles of civil and public law, the exact interpretation and application of the precautionary principle will be closely tied to the facts of each situation where it is invoked5. There is no doubt that it is through cases relating to trade rules that uncertainties still surrounding the status of the precautionary principle within the norms of international law will be progressively clarified (2).
1. Crossed influences between the precautionary principle and trade interests in multilateral environmental agreements
The confrontation of a normative principle with the rules of international trade is quite another matter than the constitution of the principle itself. Confrontation results from the pressure the new principle put on trade norms, particularly in the environmental field in the case of the precautionary principle. The coming into being of the principle is an event necessarily prior to the conflicts in which it is involved. This raises the question of the possible crossed influences between the precautionary principle and international trading norms, in the context of the current phase of crystallization of that principle. It appears that in sectors where economic interests seem most important, the general trend of consolidation of the precautionary principle is somewhat restrained (1.1.). On the other hand, the most recent instruments relating to genetically modified organisms (GMOs) show that however powerful the economic interests may be, if there is a risk of irreversible damage, the precautionary principle can nevertheless be the choice of the majority of States (1.2.).
1.1. Trade interests as a resistance to precaution
It is significant that references to the precautionary principle do not appear in every recent multilateral environmental agreement where it would have been legitimate to see it included. The absence of absolute systematization does not call into question the process of normative consolidation of the precautionary principle. Like any other international norm, the precautionary principle does not need an absolutely concordant application in practice for it to eventually be recognized as part of customary law6. On the other hand, the fact that the precautionary principle is not systematically mentioned in international instruments related to environmental protection, and more particularly in multilateral environmental agreements, is a sign of resistance to it. The silence of some agreements in regard to the precautionary principle is not a random occurrence, but the result of actual pressures.
5 See R. Briese, “Precaution and Cooperation in the World Trade Organization: An Environmental
Perspective” (2002) 22 Australian Yearbook of International Law 113 at 126, where the author suggests that the precautionary principle “is a principle in the Dworkinian sense. It influences the decision but does not necessarily determine it. Its precise role can, therefore, only be ascertained on a case-by-case basis”.
6 See art. 38 (1) (b) of the Statute of the International Court of Justice which defines international custom as
The precautionary principle first appeared in a sectorial and regional framework: pollution of the marine environment in the North-East Atlantic, and initially in the North Sea. The work undertaken under the auspices of the OECD in the 1980s on the growing pollution of the North Sea, had as its purpose to seek a solution to the inadequacies of the system of quotas for pollution discharge, then in place under the applicable legislation7. The complex issues raised by the capacity of the marine environment to absorb such pollutants and the as yet rather unreliable nature of scientific knowledge, combined with the consideration given to the risk of damageable outcomes, justified the introduction of a new approach. This approach would result in the taking of restrictive measures against potential pollutants, even though neither the existence of damages nor the causal link between those damages and the pollutants had been established with certainty. There was no real obstacle to this approach, so serious was the potential exposure to damaging outcomes. The approach, adopted as an OECD8 non-binding instrument, was then adopted in the framework of conventional law applicable to the entire North-East Atlantic9.
As a meta-legal principle par excellence10, the precautionary principle reveals a change in the law arising from confrontation with new social fears, which have necessarily been conducive to a move from prevention to anticipation11. The fear12 of the consequences attached to new technologies, such as genetic engineering or the potential for damage to
7 For a detailed historical analysis, see O. McIntyre & T. Mosedale, “The Precautionary Principle as a
Norm of Customary International Law”, supra note 2, at 224-231; P.-M. Dupuy, “Le principe de précaution, règle émergente du droit international général”, supra note 4, at 96-100; P.-M. Dupuy, “Le principe de précaution et le droit international de la mer”, in La mer et son droit, Mélanges offerts à
Laurent Lucchini et Jean-Pierre Quéneudec (Paris: Pedone, 2003), 205 at 207-212; D. Freestone,
“International Fisheries Law since Rio: the Continued Rise of the Precautionary Principle” in A. Boyle & D. Freestone, eds, International Law and Sustainable Development (Oxford: Oxford University Press, 2001) 135.
8 See the Declaration of the International Conference on the Protection of the North Sea, Bremen, 1
November 1984, in D. Freestone & T. Ijlstra, eds., The North Sea: Basic Legal Documents on Regional
Environmental Co-operation (Dordrecht, Boston & London: Graham & Trotman / Martinus Nijhoff, 1991)
61; the Declaration of the Second International Conference on the Protection of the North Sea, London, 25 November 1987, art. VII: “Accepting that, in order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolutely clear scientific evidence”, ibid., at 41; and the preamble of the Ministerial Declaration of the Third International Conference on the Protection of the North Sea, The Hague, 8 March 1990: “[The participants] will continue to apply the precautionary principle, that is to take action to avoid potentially damaging impacts of substances that are persistent, toxic and liable to bioaccumulate even where there is no scientific evidence to prove a causal link between emissions and effects”, ibid., at 5.
9 See the Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris, 22
September 1992 (entered into force 25 March 1998), Art. 2 (2) (a): “The Contracting Parties shall apply: a. the precautionary principle, by virtue of which preventive measures are to be taken when there are reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine environment may bring about hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive
evidence of a causal relationship between the inputs and the effects” (emphasis added).
10 See L. Boisson de Chazournes, “Le principe de précaution: nature, contenu et limites”, in C. Leben & J.
Verhoeven, Le principe de précaution. Aspects de droit international et communautaire, supra note 4, 65 at 66.
the global environment discovered at the end of the last century, have led to a change in the way behaviour is regulated. There is no longer any question of abstaining13 from decision-making when faced with a risk due to events over which there is still too little control. Although there may be doubt in regard to the final occurrence of potential damage, the increase in the risk factor, combined with the gravity of the damage likely to occur, form the basis of application of the precautionary principle.
The precautionary principle is becoming increasingly enshrined in law, at least in its more restrictive interpretation, insofar as it represents a means to apprehend scientific uncertainty. At this point precisely, it goes beyond the traditional principle of prevention14, whose application is restricted to situations where risks are known and identified. In practice, it is a manifestation of a profound change affecting the structure of the international legal system. That system is henceforward no longer based only on the known – under an approach frequently criticized as being in lag of reality –, but encompasses the anticipation of what may occur, doing so out of an intent to ward off possible and more serious damaging outcomes. Be it as part of the law of the sea15 or more generally on environmental protection16, the development of the precautionary principle represented the translation into legal terms of the new demands imposed on a risk-based society.
11 In opposition to what has been written by some authors, the Stockholm Declaration is based on the idea
of prevention, and not of precaution: see D. Freestone, “The Precautionary Principle”, in R. Churchill & D. Freestone, International Law and Global Climate Change (London: Graham & Trotman, 1991), 21 at 33;
contra, see P.-M. Dupuy, “Le principe de précaution, règle émergente du droit international général”, supra
note 4, at 97, note 6.
12 See H. Jonas, Le principe responsabilité: une éthique pour la civilisation technologique (Paris: éd. Du
Cerf, 1990) at 110-111.
13 See for example O. Godard, “De la nature du principe de précaution”, in E. Zaccaï & J.-N. Missa, Le principe de précaution – significations et conséquences (Bruxelles: éditions de l’Université de Bruxelles,
2000) 19 at 25.
14 See P.-M. Dupuy, “Où en est le droit international de l’environnement à la fin du siècle ?” (1997) 4 Revue Générale de Droit International Public 873 at 889, for whom the precautionary principle is the most
contemporary manifestation of the principle of prevention.
15 See for instance the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter (London, 13 November 1972), 7 November 1996 (not entered into force), Art. 3 (1): “[i]n implementing this Protocol, Contracting Parties shall apply a precautionary approach to environmental protection from dumping of wastes or other matter whereby appropriate preventive measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects”.
16 Before the Rio Declaration, the first mention of the precautionary principle for the protection of the
environment in general can be found in the Bergen Declaration of the Economic Commission for Europe, in the context of sustainable development. Paragraph 7 of the Declaration states that “[i]n order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation”, reprinted in (1990) 20 Environmental Policy & Law, 100. See also the 1990 Bangkok Declaration on Environmentally Sound and Sustainable Development in Asia and the Pacific, Ministerial Conference on the Environment, UN Economic and Social Commission for Asia and the Pacific (ESCAP), Report of the UN ESCAP Ministerial Conference on the Environment, Bangkok, 15-16 October 1990, Appendix 2 at 8-10.
As an ethical value penetrating the body of the law, it is true that the precautionary principle may give rise to excesses. When simply expressed, it is emblematic of a reasonable attitude, which appears to be a formalized yet common sense approach. It begs agreement as a self-evident truth. It is then but a short step to interpreting it as an absolute imperative. Detractors are fiercely opposed to it, as the alleged shackles of a bygone age impeding all forms of progress. Nevertheless, in a society facing potential aggression from imperfectly assessed hazards, which may impact both on its present reality17 and upcoming evolution18, the precautionary principle seems to be at the same time a means to avoid the errors of the past, and a reassurance in the face of an unpredictable future19. Therefore, it appears that neither the historical development nor the object of the precautionary principle are directly related to international trading considerations.
In multilateral environmental agreements, the precautionary principle appears for example in the Stockholm Convention on Persistent Organic Pollutants of 200120, in the two Protocols to the Convention on Long-Range Transboundary Air Pollution of 1979, relating respectively to Persistent Organic Pollutants and to Heavy Metals, adopted in 199821, in the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer22 and more particularly in the Cartagena Protocol on Biosafety to the Convention on Biological Diversity of 200023.
17 The existence of diseases transmitted to humans by animals and the transmission of viruses (HIV,
hepatitis) can be cited as examples.
18 For instance, the climate change phenomenon and its potential impact.
19 See F. Ost, “Les multiples temps du droit”, in Le droit et le futur (Paris: P.U.F., 1985), 115 at 119. 20 22 May 2001 (entered into force 17 May 2004). See preamble, al. 8: “Acknowledging that precaution
underlies the concerns of all the Parties and is embedded within this Convention” and Art. 1 (Objective): “Mindful of the precautionary approach as set forth in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Convention is to protect human health and the environment from persistent organic pollutants”. See also, though in a more indirect way, Art. 8 (9) and Annex C (V) (B) (Best available techniques).
21 Aarhus, 24 June 1998 (respectively entered into force on 23 October 2003 and on 29 December 2003).
See Preamble, al. 7 of the Protocol on persistent organic pollutants: “Resolved to take measures to anticipate, prevent or minimize emissions of persistent organic pollutants, taking into account the application of the precautionary approach, as set forth in principle 15 of the Rio Declaration on Environment and Development” and the equivalent disposition in the Protocol on Heavy Metals (Preamble, al. 8). See also, in the first of these instruments, Annex V, par. 2, and more indirectly Art. 4(2) (b) (iii) and (c) (v). In the second Protocol, see Annex III (I) (2), and Annex VII (3).
22 16 September 1987 (entered into force 1 January 1989). See Preamble, al. 6: “Determined to protect the
ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it, with the ultimate objective of their elimination on the basis of developments in scientific knowledge, taking into account technical and economic considerations and bearing in mind the developmental needs of developing countries”. See also al. 8.
23 29 January 2000 (entered into force 11 September 2003). See Preamble, al. 5: “Reaffirming the
precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development”; Art. 1: “In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements”; Art. 10 (6), Art. 11 (8) and Annex III (Risk Assessment) (4) (General Principles). For specific developments relating to this instrument, see infra, 1.2.
Another trend exists though, characterized by a resistance to the precautionary principle, in areas where issues in economic terms are of particular consequence. As a result, the precautionary principle may not be adopted, or if so, in an attenuated form or in an indirect way.
One of the most significant examples of this trend is the Declaration of Principles on Forests. This is the only instrument adopted at the 1992 Rio Conference on Environment and Development that does not include the precautionary principle. The tenacious opposition of the main countries working in timber and forestry, such as Indonesia, and the representatives of the timber industry, prevented not only the adoption of mandatory instruments at this time, but also stood in the way of any reference to the precautionary principle, which was perceived as an impediment to business in this sector24.
For similar reasons, although a treaty was signed, negotiations concerning trade in toxic substances gave rise to the same outcome. The Convention of Rotterdam25 organized trade in toxic substances by introducing procedures of informed prior consent, but did not go so far as to include the precautionary principle. At most, this instrument deals with precautions required as part of the management of the risk from toxic materials26. There is no question that the trade and use of toxic substances can give rise to damages in a context of uncertainty as regards risks. However, the informed prior consent procedure, while it may be perceived as one of the applications of the precautionary principle in certain circumstances, is nevertheless not a necessary manifestation thereof. In the context of this particular instrument, the procedure agreed upon seems to be one that reflects the idea of prevention rather than being based on precaution. Clearly, there was a barrier standing in the way of the application of the precautionary principle. The signs of such a barrier can be traced throughout the preparatory work leading up to the Convention. Not one of the 11 reports of the Intergovernmental Negotiating Committee mentions the precautionary principle27.
24 Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management,
Conservation and Sustainable Development of all Types of Forests, Rio de Janeiro, 14 June 1992, A/CONF.151/26 (Vol. III), Annex III. See P. M. Saunders, “Moving from Rio: Recent Initiatives on Global Forest Issues” (1994) 32 Canadian Yearbook of International Law 143 at 143-145; M. Jahnke, “Rio Conference on Environment and Development” (1992) 22 Environmental Policy & Law 204 at 222. See also M. Steiner, “The Journey from Rio to Johannesburg: Ten Years of Forest Negotiations, Ten Years of Successes and Failures” (2002) 32 Golden Gate University Law Review 629; V.K. Prabhakar, “Rio Declaration and Forest Principles” in V.K. Prabhakar, ed., International Laws on Biodiversity (New Delhi: Anmol, 2001) 228.
25 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade, 10 September 1998 (entered into force 24 February 2004).
26 See Art. 14 (3) (d), according to which “[i]nformation on precautionary measures, including hazard
classification, the nature of the risk and the relevant safety advice” (…) “shall not be regarded as confidential for the purposes of this Convention”. See also Annex V, par. 1, al e), which aims at “[i]nformation on precautionary measures to reduce exposure to, and emissions of, the chemical”.
27 See for instance the last report, Report of the Intergovernmental Negotiating Committee for an International Legally Binding Instrument for the Application of the Prior Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade on the Work of its Eleventh Session,
The Kyoto Protocol on climate change28 is another recent instrument that does not mention the precautionary principle. It is to be remembered though that the Protocol in itself may be perceived as an application of the precautionary principle, as no scientific certainty has emerged yet on the exact causes of climate change. But the lack of direct reference to the precautionary principle in the text of the Kyoto Protocol, in opposition to some comparable instruments, may be seen as a reflection of the significance of economic interests in this sector. While reference was made to the uncertainties surrounding our knowledge of climate change, no inference was openly made that there should be no barrier to the adoption of precautionary measures29. The negotiating Parties agreed on the technical implementation of the precautionary principle in terms of concrete measures taken to limit the emissions of greenhouse gases, but not on its direct30 normative recognition. From this point of view, it is interesting to note that some draft measures which did adopt the precautionary principle, were not finally included31. It is true that commercial interests exerted heavy pressure against the making of economic sacrifices to keep down greenhouse gases. Nevertheless, the pressure exerted was no greater than for the GMOs. The reason is that, with GMOs, we are confronted with the very basis of the precautionary principle: risk of great damage.
1.2. Precaution and GMOs: the prevalence of fear of risk over trade interests
Of itself, the inclusion of the precautionary principle in a multilateral convention relating to environmental protection, adopted in 2000, comes as no surprise, given the general move toward its normative crystallization. Nevertheless, the Cartagena Protocol on Biosafety breaks new ground considering the enormous pressure put on the States by the commercial interests involved in the use of modern biotechnologies in the food and agriculture industry. It is paradoxically in an area of extensive underlying commercial and trading interests that the precautionary principle has in the recent past been more solidly rooted. Not only does the Cartagena Protocol on the prevention of biotechnological risks make express reference to the precautionary principle, but it does so in several different ways.
The Protocol preamble draws attention to the fact that the Parties have, with this instrument, appropriated the content of Principle 15 of the Rio Declaration32. This
28 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997
(the entry into force will occur on 16 February, 2005).
29 See Art. 3 (4) and Art. 10 (d).
30 See the cross reference to art. 3 (3) of the United Nations Framework Convention on Climate Change
(New York, 9 May 1992, entered into force 21 March 1994) in the Preamble of the Kyoto Protocol. This disposition reproduces the most commonly adopted wording of the precautionary principle. See J.-P. Van Ypersele, “Effet de serre et précaution: enjeux et réponses”, in E. Zaccaï & J.-N. Missa, eds, Le principe de
précaution – significations et conséquences, supra note 13, 155 at 158-161.
31 See Report of the ad hoc Group on the Berlin Mandate on the Work of its Sixth Session, Bonn, 3-7 March 1997 – Proposals for a Protocol or Another Legal Instrument – Negotiating Text by the Chairman ,
FCCC/AGBM/1997/3/Add.1 at 10, 20-21, 68.
32 Preamble, al. 5: “Reaffirming the precautionary approach contained in Principle 15 of the Rio Declaration
wording is found in other similar treaties33. Still less surprising is the adoption of the wording of the precautionary principle in the provisions on risk management34, as this is the primary intent of the protocol. On the other hand, Article 1 of the Protocol breaks new ground. The first provision in the treaty, symbolically introducing the document, deals with the general purpose of the Protocol. That purpose is expressly based on the precautionary principle, and is drafted as follows:
“In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements”.
This marks a notable advance with respect to the crystallization of the precautionary principle. That principle is no longer solely adopted as a technical mechanism for the regulation of the risk of damageable outcome, in an area laden with uncertainty, nor is it a general guideline for the conduct of States. The principle henceforward becomes an objective to be pursued by the Parties. The difference is important, and translates into the fact that the States are not required simply to draw their inspiration from the principle, but to act “in accordance” with it, in the practical field of the regulation of the cross-border movements of GMOs. In the draft, “in accordance” is an advised choice, and was the subject of careful negotiation. The “Miami Group”, a gathering of the major biotechnology producing States, was opposed to this formulation and wanted to see it replaced by the wording “taking note of the precautionary approach”35. This wording would have signalled a far less well defined obligation than the one finally adopted.
33 See for instance the Stockholm Convention on Persistent Organic Pollutants, supra note 20, Preamble, al.
8; the Protocol on Heavy Metals, supra note 21, Preamble, al. 8; the Protocol on Persistent Organic Pollutants, ibid., Preamble, al. 7; the Protocol on Pollutant Release and Transfer Registers, Kiev, 21 May 2003 (not entered into force), Preamble, al. 11 (Protocol to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998 (entered into force 30 October 2001).
34 See Art. 10 (6) (Decision procedure) : “Lack of scientific certainty due to insufficient relevant scientific
information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such potential adverse effects”. See also art. 11 (8) (Procedure for living modified organisms intended for direct use as food or feed, or for processing) and Annex III (Risk assessment) (4) (General principles).
35 See, Report of the Extraordinary Meeting of the Conference of the Parties for the Adoption of the Protocol on Biosafety to the Convention on Biological Diversity, UNEP/CBD/ExCOP/1/3, 20 February
The representatives of the GMO producer States were also opposed to making multiple references to the precautionary principle in the draft of the Cartagena Protocol. In this respect they were in part successful. The dispute focussed essentially on the draft Article 8 (7) relating to the decision-making procedure36. As in the original draft, this measure was based on the precautionary principle, or at least on the formulation thereof derived from Principle 15 of the Rio Declaration37. The measure as adopted in the definitive text, Article 10 (6), takes up the content of the earlier draft, but in wording which does not directly allow the importing Party to prohibit the import of a living modified organism (LMO) in the event that there is no scientific certainty regarding its potentially harmful effects. In this case, the option open to the importing Party, according to the draft, will be restricted to “taking the appropriate decision”38. Arguably though, the “appropriate decision” could very well be in a particular situation the prohibition of import, despite the change of vocabulary that occurred during the negotiations of the Protocol.
Nevertheless, one feature of the negotiation remains striking: many negotiating States made pronouncements on the principle and they were all favourable, not only to the new approach encompassed by the protocol, but also to its inclusion in a binding multilateral instrument on the transport and movement of LMOs39. Canada, although one of the main producing countries, actually acknowledged that the Protocol was the expression of the precautionary principle as such, emphasising the degree to which the Protocol was in the spirit of that principle40. The “spirit” was also one of the main arguments put forward by the “Miami Group” in support of the view that it was unnecessary to make multiple references to the principle41. In actual practice though, the outcome was that the producing countries expressed in some ways their approval with the inclusion of the idea of precaution in regulating living modified organisms (LMOs) on the international scene, although they would not have rendered the precautionary principle as binding as it actually is in the adopted instrument.
36 Negotiations on that point lasted long; ibid., at 23, 36-41.
37 “Lack of full scientific certainty or scientific consensus regarding the potential adverse effects of a living
modified organism shall not prevent the Party of import from prohibiting the import of the living modified organism in question as referred to in paragraph 3 (b) above”, Report of the Sixth Meeting of the
Open-Ended ad hoc Working Group on Biosafety, UNEP/CBD/ExCOP/1/2, 15 February 1999 at 23. 38 See, supra note 34.
39 See Report of the First Meeting of the Open-Ended ad hoc Working Group on Biosafety,
UNEP/CBD/BSWG/1/4, 22 August 1996 (Denmark and other States at 2, 10-11) ; Report of the Second
Meeting of the Open-Ended Working Group on Biosafety, UNEP/CBD/BSWG/2/6, 11 June 1997 at 10, 12,
31; Report of the Third Meeting of the Open-Ended ad hoc Working Group on Biosafety, UNEP/CBD/BSWG/3/6, 10 october 1997 at 3, 20; Terms of Reference for the Open-Ended Ad Hoc
Working Group, annexed to Decision II/5, adopted by the second Conference of the Parties (COP 2), 1997,
par. 5: “The Protocol will take into account the principles enshrined in the Rio Declaration on Environment and Development and, in particular, the precautionary approach contained in Principle 15”; Compilation of
New Government Submissions of Draft Text (Structured by Article), UNEP/CBD/BSWG/5/2, 3 July 1998; Report of the Fifth Meeting of the Open-Ended ad hoc Working Group on Biosafety,
UNEP/CBD/BSWG/5/3, August 1998 (Colombia and developing countries at 14-15).
40 Report of the Extraordinary Meeting of the Conference of the Parties for the Adoption of the Protocol on Biosafety to the Convention on Biological Diversity, supra note 35, at 45.
The inclusion of the precautionary principle in this field of activity was supported by the precedent of the Convention on Biological Diversity42, and by a number of sectorial instruments, which also relate to the protection of biodiversity, such as the Agreement on the Conservation of African-Eurasian Migratory Waterbirds43. The first steps to the inclusion of the precautionary principle had therefore been taken in the years prior to the adoption of the Cartagena Protocol.
The current state of affairs reveals a boundary being in fact drawn between those areas in which changes in consciousness are occurring and where the application of the precautionary principle is called for as a matter of necessity, and the majority of other fields which are grey areas, onto which the precautionary principle will be grafted as and when the balance of opposing forces allows.
Transboundary movements of LMOs is a special case, situated on that fine demarcation where a preventive approach is not sufficient, confirming the need to move on to a precautionary approach. LMOs represent a core concern in their own right, and inspire fear as to the potentially irreversible nature of any damageable outcome should it ever occur44, and do so irrespective of any parallel economic interests.
The threshold at which a potentially damaging outcome might occur, now becomes a fundamental criterion. Although the precautionary principle was not in any systematic way formulated for the purpose of apprehending the risk of irreversible damaging outcomes45, a number of instruments limit its application to that context46. It would appear that, at least in some sectors, only the most serious outcomes would justify the adoption of the precautionary approach. This is tantamount to saying that, in the case of
42 Preamble, al. 9: “Noting also that where there is a threat of significant reduction or loss of biological
diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat”. It is to be noticed that the prior draft mentioned the precautionary principle among the binding dispositions. See A.E. Boyle, “The Rio Convention on Biological Diversity” in M. Bowman & C. Redgwell, (eds.), International Law and the Conservation of Biodiversity (London: Kluwer Law International, 1996) 37.
43 The Hague, 16 September 1995 (entered into force 1 November 1999), Art. 2 (2) (e). See also the
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 December 1995 (entered into force 11 December 2001), art. 5 (c) and art. 6; the 1994 Fort Lauderdale Resolution adopted by the Parties to the CITES Convention,
Resolution of the Conference of the Parties: Criteria for Amendment of Appendices I and II, Ninth Meeting of the Conference of the Parties, Fort Lauderdale, 7-18 November 1994. See V.B. Dickson, “The
Precautionary Principle in CITES : A Critical Assessment” (1999) 39 Natural Resource Journal 211.
44 See N. de Sadeleer & C.-H. Born, Droit international et communautaire de la biodiversité (Paris: Dalloz,
2004) at 73.
45 See the Convention on Biological Diversity, Preamble, al. 9 (“threat of significant reduction or loss of
biological diversity”); the Convention on the Protection and use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992 (entered into force 6 October 1996), art. 2 (5) (a) (“potential transboundary impact of the release of hazardous substances”); the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 30 January 1991 (entered into force 22 April 1998), art. 4 (3) (f) (“preventing the release into the environment of substances which may cause harm to humans or the environment”).
scientific uncertainty, the precautionary principle will be invoked, if not always, at least when faced with the risk of the most extensive damage.
Determination of the threshold of gravity of potential damage is no easy matter. Practice among States has nevertheless thrown light on an important point, by making a distinction between the gravity and the irreversibility of a potential damaging outcome47. Particularly severe damage is not necessarily irreversible, and vice versa. It therefore remains to be determined whether the threshold for the adoption of the precautionary principle is reached by the cumulative combination of the two criteria, or whether a degree of severity or of irreversibility in their own right will suffice. But the potential for damaging outcome from GMOs is emblematic of the worst-case scenario. The gravity of the damage which such organisms could entail, and more particularly the likelihood that such damage will be irreversible, conducted the States to adopt a rather strong version of the precautionary principle in the Cartagena Protocol.
The transboundary movement of LMOs is a sector that differs in one essential point from the others. There is no overriding need to adopt new production techniques based on biotechnology, considering the risks that they may generate. Forcing the introduction of products when there are weighty suspicions that they may either be harmful to health, or give rise to changes in the natural environment, will not only generate feelings of insecurity, but also represents an unwarranted limitation of the freedom of choice of citizens and consumers. The particularly high profile reaction in Europe, in opposition to the systematically authorized dissemination of LMOs that occurred for instance in some GMO producing countries, is the result of a legitimate fear that the introduction of LMOs would render impossible the access to foods previously available in their full variety and richness. The same situation does not, for example, apply in the field of greenhouse gas emissions, as no viable equivalent to fossil sources has yet been found which can basically fuel heat and transportation, both for private and business purposes. Here the argument based on necessity does not carry the same weight as it does for LMOs.
However, the shift to a new approach is not complete, even in the case of the recent regulations on GMOs. Resistance survives in this field too, as demonstrated by the work undertaken by the FAO. The Codex alimentarius48 and the different committees of the FAO undertaking studies and proposing lines of conduct in regard to the many questions raised by the use of GMOs49, do not base their findings on the precautionary principle,
47 See the analysis exposed by L. Boisson de Chazournes, “Le principe de précaution: nature, contenu et
limites”, supra note 10 at 77-79, who comments the reflections of N. de Sadeleer, Les principes du
pollueur-payeur, de prévention et de précaution. Essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement, supra note 2 at 180-184. On the notion of irreversibility, see Revue Juridique de l’Environnement (1999) special issue.
48 See Principles for the Risk Analysis of Foods Derived from Modern Biotechnology, CAC/GL 44-2003;
Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Plants, CAC/GL 45-2003; Guideline for the Conduct of Food Safety Assessment of Foods Produced Using
Recombinant-DNA Microorganisms, CAC/GL 46-2003, online
www.codexalimentarius.net/web/standard_list (date accessed: 25 January 2005).
49 See Commission on Genetic Resources for Food and Agriculture, Progress on the Draft Code of Conduct on Biotechnology as it Relates to Genetic Resources for Food and Agriculture: Policy Issues, Gaps and Duplications, Tenth regular session, Rome, 8-12 November 2004, CGRFA-10/04/13; “FAO Statement on
but on the technique of substantial equivalence. The weight of producer States within the FAO, and the longstanding use of this technique exert full power in favour of the status
quo and against the precautionary principle.
It can nevertheless be foreseen that a move toward the precautionary principle, even in these arenas, could take place in the future. There are substantial signs of this, among them reference to the precautionary principle by some in the FAO50, and the questions raised about the method of substantial equivalence by States which currently adopt that method. But change, if it were to take place, will not in all likelihood occur in the immediate future51. The voices raised in the FAO are not among the most decisive, and although dissent in regard to the principle of substantial equivalence has at least been voiced in Canada52, it has not spread everywhere53. Concrete developments have yet to occur.
In the context of the Cartagena Protocol itself, elements of resistance to the precautionary principle are perceptible. There is no trace of that principle in the documents where it had been foreseen it would be included54. The fact also that the Protocol’s preamble refers to the “precautionary approach” set out in Principle 15 of the Rio Declaration, but makes no mention of the “precautionary principle” as such, is symptomatic of the compromises that must have been made by the Parties.
Biotechnology”, online www.fao.org//biotech/stat.asp (date accessed: 25 January 2005); “Biotechnology and Food Safety. Safety Assessment of GM Foods: The Concept of Substantial Equivalence”, online:
www.fao.org/es/ESN/food/risk_biotech_se_en.stm (date accessed: 25 January 2005).
50 “FAO Stresses Potential of Biotechnology but Calls for Caution”, Press Release 00/17, online:
www.fao.org/WAICENT/OIS/PRESS_NE/PRESSENG/2000/pren0017.htm (date accessed: 25 January 2005).
51 See the consultation of experts convened at the FAO on 27 January 2005 where it has been recommended
“that any responsible deployment of Genetically Modified (GM) crops need to comprise the whole technology development process, from the pre-release risk assessment, to biosafety considerations and post release monitoring”. It has not been specified if this means the inclusion of the precautionary principle. In any event, the FAO keeps on referring to the principle of substantial equivalence even in its new strategy. See FAO, “Monitoring the environmental effects of GM crops”, online: at www.fao.org/newsroom (date accessed: 25 January 2005).
52 See infra Part. 2.2.
53 For instance, precaution was included in the text of the International Plant Protection Convention adopted
in November 1951 (entered into force 3 April 1952) but has been deleted in the 1997 revision (not yet in force).
54 See Glossary of Terms Relevant to a Biosafety Protocol. Results from a Preliminary Survey by the Secretariat, UNEP/CBD/BSWG/2/5, 18 March 1997.
2. The challenge ahead for international tribunals: resolving conflicts between competing versions of precaution
The status conferred in international law to the precautionary principle has been the object of much debate. Some authors have suggested that the principle has gained the status of customary law, especially considering the impressive number of legal instruments, both at the international and regional levels, where it has been included55. It cannot be denied that the multiplicity of formulations of precaution through binding and nonbinding instruments certainly ascertains its role as one of the leading new directions given to international environmental law in recent years56. Nevertheless, it can be assumed that it is mainly through conflicts arising from the confrontation of precautionary measures and other internationally formulated rules that a more definite answer to that question will be articulated. International adjudicators and courts will inevitably play a major role in accomplishing that task. The precautionary principle has already been invoked in several litigations at the international level. The scope of this paper does not permit a review of all of them57 but two of the most significant cases are analyzed below, one emanating from the International Court of Justice, the other from the Appellate Body of the World Trade Organization (WTO) (2.1). In terms of interactions between the precautionary principle and trade law rules, the actual conflicts that can result from the release into the environment of genetically modified organisms (GMOs) command a special attention (2.2).
2.1 The Danube Dam Case58 and the Hormones Case59
It is worth noting that the precautionary principle has not been recognized so far as a rule of customary international law either by the International Court of Justice (ICJ) or the Appellate Body of the World Trade Organization (WTO), despite the fact that both instances had the opportunity to consider its relevance in litigations concerning potential threats to the environment or human health. Some believe that the Gabcikovo
Nagymaros has been a “missed opportunity” in that respect60. The conflict submitted to the ICJ originated in 1989 when Hungary suspended and abandoned the project it had
55 See supra, note 4.
56 See J. Cameron, J. Cameron, “Future Directions in International Environmental Law: Precaution,
Integration and Non-state Actors”, supra note 2.
57 For a more complete analysis of the international jurisprudence concerning the precautionary principle,
see in particular: M.C. Cordonier Segger & M. Gehring, “Precaution, Health and the World Trade Organization: Moving toward Sustainable Development” (2003) 29 Queen’s L.J. 133 at 143-155.
58 Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997, 3 [hereinafter Danube Dam].
59 EC Measures concerning Meat and Meat Products (Hormones), WTO Doc. WT/DS26/AB/R, 16 January
1998 [hereinafter Hormones].
60 As two authors put it: “There were many opportunities throughout the Danube Dam Case for the Court to
rely upon the precautionary principle. […] [T]he failure of the ICJ to consider [it], instead primarily relying upon principles of treaty law, was a disappointment”. See A. A-Khavari & D.R. Rothwell, “The ICJ and the
Danube Dam Case: A Missed Opportunity for International Environmental Law” (1998) 22 Melbourne
University Law Review 507 at 530. For a detailed presentation of the facts of that dispute, see C.P.R. Romano, The Peaceful Settlement of International Environmental Disputes. A Pragmatic Approach, (The Hague, London, Boston: Kluwer International Law, 2000) at 246-260.
agreed to carry out jointly with Czechoslovakia, as it was then known, for the construction and operation of a Barrage System on the Danube River, pursuant to a Treaty and some related instruments entered into between the two countries in 1977. When Hungary abandoned the work, Czechoslovakia proceeded unilaterally with a temporary solution, by diverting the waters on its territory into a canal. Then the realization of more work without the need for any intervention into or by Hungary was designed to satisfy the needs of Czechoslovakia for the production of electric power61. That unilateral action by Czechoslovakia led to another type of action by Hungary, which decided to terminate the treaty in May 1992. In the summer of 1993, after the dissolution of the State of Czechoslovakia into Slovakia and the Czech Republic, and the succession of States that resulted, the dispute was referred to the ICJ by a special agreement entered into between the governments of Slovakia and Hungary. The decision of the ICJ was rendered on September 25, 1997.
In its decision, the Court makes no mention whatsoever of the precautionary principle62 even though the Court explicitly relies on the concept of sustainable development. This concept is used by the Court as an effort to reconcile its ruling that Hungary violated its treaty obligations by refusing to pursue the construction of the dam with Slovakia with the reasons invoked by Hungary for such refusal. Hungary pretended that no adequate environmental assessments had been performed as to the project and that significant risks to the fauna and flora of the Danube River and to the water supply of the city of Budapest would be created by the construction and operation of the dam. Given the growing opposition of its citizens to the project, Hungary decided not to continue with the building of the dam, and justified its violation of the treaty contracted with Czechoslovakia, as it was then known, by invoking a “state of ecological necessity”63. The Court, relying on principles of customary law, recognized that a state of necessity precluding the wrongfulness of an act not in conformity with an international obligation could be triggered by a “grave and imminent peril” to the environment64, although it
61 See C.P.R. Romano, ibid., at 250.
62 According to Pierre-Marie Dupuy, counsel of Hungary in that litigation, even though the precautionary
principle was expressly mentioned in the written proceedings, Hungary did not intend to rely too heavily on it considering its uncertain status in international environmental law. Hungary stressed instead that precaution was nothing else but a more contemporary and advanced version of the principle of prevention, which in its view has arguably gained over the years the status of customary international law. Given that most of the damages invoked by Hungary were not actual and certain, but rather potential ones, with a high probability of occurrences on a scale of five to fifty years, Dupuy estimates the case to be one where the precautionary principle should typically apply. See P.-M. Dupuy, “Le principe de précaution, règle émergente du droit international général”, supra note 4, at 108-110. See also: A. A-Khavari & D.R. Rothwell, “The ICJ and the Danube Dam Case: A Missed Opportunity for International Environmental Law”, supra note 60, at 529-530.
63 Danube Dam Case, par. 40.
64 The Court relies on the state of necessity defense as recognized by the International Law Commission
(ILC) in the Draft Articles on State Responsibility, which reads at article 33: 1. “A state of necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act of that State not in conformity with an international obligation of the State unless: (a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril; and (b) the act did not seriously impair an essential interest of the State towards which the obligation existed. 2. In any case, a state of necessity may not be invoked by a State as a ground for precluding wrongfulness: (a) if the international obligation with which the act of the State is not in conformity arises out of a peremptory norm
considered there was no sufficient proof submitted before the Court in the present case as to the reality, the magnitude and the certainty of the threat invoked65. The defense could not be accepted as the strict conditions imposed for its recognition were not met, especially the presence of a “grave and imminent peril”66.
The Court reviewed the evidence submitted by both parties and considered that the dangers invoked by Hungary remained uncertain and mostly of a long-term nature, and that therefore they were not “imminent”67. Consequently, the Court found that “Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcikovo Project for which the 1977 Treaty and related instruments attributed responsibility to it”68. The Court also decided that the unilateral conduct of Slovakia in putting into operation its solution constituted an internationally wrongful act69. Finally, the Court rejected Hungary's claim that it was entitled to terminate the treaty in 1992, due to a fundamental change of circumstances70. of general international law; or (b) if the international obligation with which the act of the State is not in conformity is laid down by a treaty which, explicitly or implicitly, excludes the possibility of invoking the state of necessity with respect to that obligation; or (c) if the State in question has contributed to the occurrence of the state of necessity.” See, Danube Dam Case, par. 50. For the original version of the article, see ILC, “Draft Articles on State Responsibility” [1980] 2 Yearbook of the International Law
Commission; Part Two 33, art. 33; for the current version, see ILC, “Responsibility of States for
internationally wrongful acts” (2001), annexed to the UNGA resolution 56/83, 28 January 2002.
65 Danube Dam Case, par. 57.
66 As the Court explained at par. 54: “Hungary on several occasions expressed, in 1989, its ‘uncertainties’
as to the ecological impact of putting in place the Gabcikovo-Nagymaros barrage system, which is why it asked insistently for new scientific studies to be carried out. The Court considers, however, that, serious though these uncertainties might have been they could not, alone, establish the objective existence of a ‘peril’ in the sense of a component element of a state of necessity. The word ‘peril’ certainly evokes the idea of ‘risk’; that is precisely what distinguishes ‘peril’ from material damage. But a state of necessity could not exist without a ‘peril’ duly established at the relevant point in time; the mere apprehension of a possible ‘peril’ could not suffice in that respect. It could moreover hardly be otherwise, when the ‘peril’ constituting the state of necessity has at the same time to be ‘grave’ and ‘imminent. ‘Imminence’ is synonymous with ‘immediacy’ and ‘proximity’ and goes far beyond the concept of ‘possibility’ […] That does not exclude, in the view of the Court, that a ‘peril’ appearing in the long term might be held to be ‘imminent’ as soon as it is established, at the relevant point in time, that the realization of that peril, however far off it might be, is not thereby any less certain and inevitable”.
67 The materialization of some of the risks would depend on the terms of operation of the dam in peak
mode, which were not determined at the time Hungary decided to suspend and abandon the work. As to the lowering of the riverbed and the threat to the supply of drinking water in Budapest, the Court noted that the peril invoked had materialized for a number of years prior to 1989 when the work was abandoned. In fact, the bed of the Danube had already been deepened prior to 1980 to extract building materials and the depth required by the treaty was at that moment already attained. The risks in that respect did not entirely emanate from the new project. Furthermore, the Court considered that Hungary had other means available to it to respond to the dangers it apprehended, such as regularly discharging gravel into the river downstream of the dam, processing the river water in an appropriate manner to ensure its quality as drinking water, and controlling the distribution of the water between the bypass canal, the old bed of the Danube and the side-arms: See, Danube Dam Case, pars. 55-57.
68 Ibid., par. 59.
69 It could not be justified as a countermeasure since the diversion of the Danube carried out by
Czechoslovakia was depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube. The countermeasure invoked by Slovakia failed to respect the proportionality that is required by international law, ibid., pars. 72-88.
70 Ibid., pars. 104-115. Hungary had argued that several events cumulatively constituted that change of
Consequently, the Court declared that the Treaty of 1977 was still valid between Slovakia and Hungary and that both Parties would have to seek agreement on the terms of execution of the judgment. In that respect, the Court proceeded to determine what the future conduct of the Parties should be.
It is in that part of the decision that the Court makes its most explicit references to international environmental law. In enjoining the Parties to negotiate and reach an agreement as to the way the Project should be carried out, the Court mentions the necessity to pursue the multiple objectives of the Treaty in a joint and integrated way, as well as the standards of international environmental law and the principles of the law of international watercourses. In a well-known passage of its decision, the Court recognizes that “[t]his need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development”71.
In clarifying that situations of scientific uncertainty as regards risks should not lead to the application of the defense of “ecological necessity”, the Court excluded the possibility of invoking in the future the precautionary principle in that context. In a separate opinion perceived by some as “a breath of fresh air”72, Judge Weeramantry relies most exclusively on principles of international environmental law and gives significant meaning in particular to the concept of sustainable development73. For two authors, the
Danube Dam decision leads to the conclusion that “[…] rather than being a leader in the
development of international environmental law, […] the [ICJ] will be more of a commentator with only occasional separate or even dissenting opinion having the potential to have a major impact on the development of the law”74.
It should be remembered though that the International Court of Justice may not be well equipped to deal with highly technical matters involving the analysis of scientific data, as was the case in the Danube Dam litigation75. The Court”s reliance on treaty law to solve the dispute, instead of invoking other sources that would have appeared more “modern” in the circumstances, can be explained in part by the conservative stance the Court usually takes in its judgments. It can also be explained by the fact that the Parties themselves did put great emphasis on treaty law in the proceedings. As for the precautionary principle, the decision was rendered in 1997, only five years after its inclusion in the Rio Declaration. In retrospect, this would have made very short notice for a more formal recognition of it by the Court.
Project’s diminishing economic viability, the progress of environmental knowledge and the development of new standards and prescriptions of international environmental law. None of these was retained by the Court as a justification for unilaterally terminating the Treaty.
71 Ibid. pars. 140-141.
72 A. A-Khavari & D.R. Rothwell, “The ICJ and the Danube Dam Case: A Missed Opportunity for
International Environmental Law”, supra note 60, at 535.
73 Separate opinion of Vice-President Weeramantry, Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997, 88.
74 A. A-Khavari & D.R. Rothwell, “The ICJ and the Danube Dam Case: A Missed Opportunity for
International Environmental Law”, supra note 60, at 536.
75 C.P.R. Romano, The Peaceful Settlement of International Environmental Disputes. A Pragmatic Approach, supra note 60, at 259-260.
