Principles of international environmental protection - Introduction to International Environmental Law - page 121

Signifi cant material-procedural principles 38 expound the status of scientifi c
knowledge in environmental decision-making. According to the principle of
prevention, environmental protection should commence when a high degree
of scientifi c certainty of the environmental problems of a given human activity
is achieved. The precautionary principle, 39 in contrast, requires action before
full scientifi c certainty has been achieved if serious or irrevocable conse-
quences may follow.
The precautionary principle exemplifi es a new relationship between
scientifi c 'certainty' and environmental decision-making. It cannot easily be
classifi ed as either procedural or material as it is often implemented through
procedures (reversed burden of proof, or EIA procedure), while it also repre-
sents an ideal by which environmental decisions should be made: before
scientifi c certainty, and promptly if the consequences could be serious or
irreversible.
Natural science increasingly reminds us that it is impossible to achieve abso-
lute certainty on environmental issues. Moreover, the modern world is fraught
with different environmental problems, often mutually interacting, so it is
diffi cult to identify any single issue in which to achieve any degree of scientifi c
certainty.
Economic scholars argue that the precautionary principle is incompatible
with modern economic operations even if it actually refl ects the way we
usually act in our own everyday lives. Most people avoid serious risks; they
make decisions with caution and do not risk seriously injuring themselves
if they can avoid it. Companies do not make their decisions on the same
bases, because in the end neither the company nor even its owners will
suffer if environmental problems occur. Even in the case of a massive tort
action, the company can shield itself behind bankruptcy laws and the
owners will not be obliged to pay compensation. Companies work in a
relatively open competitive environment whereby to exclude sectors of
their activity based on serious environmental risks could put them at a
competitive disadvantage compared with other fi rms that are prepared to
take such risks. This is why environmental law is enacted: legislation levels
the playing fi eld by requiring the same environmental measures of all
companies.
German sociologist Ulrich Beck 40 says we have created a risk society in
which regional and global environmental problems are generated by the deci-
sions of multiple business actors, each of which when taken alone is relatively
harmless. Such decisions should be counterbalanced by a powerful govern-
ment, or intergovernmental treaties and organizations that are able to consider
the overall benefi t of society.
The precautionary principle is perhaps the most debated and the most
controversial principle in international environmental law. This is partly due
to the rapid development of its status in international law. The precautionary
principle also contains potential for radical environmental regulation, causing