And this really is what the precautionary principle is about. When it comes to taking public policy decisions, elected officials and civil service officers need to be able to have a risk management protocol that enables them to assess a suspected risk and take appropriate measures to mitigate it. The precautionary principle comes into play when there is no clear scientific evidence or consensus that can persuade policy-makers to go ahead with a specific technology (e.g. GMOs or fracking) or to address a specific issue (e.g. climate change or biodiversity loss).
The precautionary principle stems from the widely acknowledged social responsibility of governments and other institutions to protect the public and people from harm. In cases therefore, where there is cause to believe that pursuing a specific course of action or introducing a new technology may create a risk for the wider public or a specific group or the environment and scientific evidence is considered as lacking or inconclusive, the precautionary principle kicks in¹. The precautionary principle is sometimes invoked to help decision-makers arrive at a policy conclusion until more scientific evidence is available. For instance, the E.U. took a decision to introduce a limited ban on phthalates, chemical substances that are used to make PVC flexible, until more scientific evidence could be collected².
The precautionary principle is incorporated in the laws and policies of many jurisdictions, such as the European Union, as well as several United Nations conventions and documents. For example, the precautionary principle is referenced in Article 191 of the Treaty on the Functioning of the European Union, the founding treaty for the EU, but it also forms the basis of the EU’s regulatory framework for chemicals management, known as the REACH Regulation, as well as, policy on food law³.
At international level, the precautionary principle was first endorsed in 1982 in the context of the World Charter for Nature which was adopted by the UN. More importantly, it was then referenced in the Montreal Protocol at the basis for protecting the ozone layer⁴. Subsequently, the precautionary principle has been included in other treaties and legally binding agreements such as the Kyoto Protocol.
But while references to the precautionary principle abound, they are rarely accompanied by a definition of this principle. For example, it was years after the signing of the Treaty on the Functioning of the EU that a policy document on the precautionary principle was published by the EU defining its use and clarifying its purpose⁵. In fact, the closest we have to a definition stems from a three-day conference in 1998, where lawyers, academics and environmentalists met specifically to discuss the precautionary principle and agreed on summarising it as follows:
“When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically”⁶.
What is perhaps so interesting about the precautionary principle is that while it is a bit tricky to define, it seems to fully resonate with our instincts and intuitions. Despite the multiple and often deficient definitions of the precautionary principle, we see it often applied in the real world.
One such example is the use of Bisphenol A, otherwise known as BPA, in plastics. The science around BPA has been reviewed, assessed and re-assessed by multiple authorities in the United States, Canada and Europe. NGOs have long supported that the evidence linking the use of BPA with environmental and health risks is strong enough to warrant a full ban of the substance; industry has contested this while scientists and academics have been very much split on the issue due to the conflicting and ever-increasing studies developed for this substance. In the midst of all this and following the recommendation of an EU scientific panel, the EU introduced a ban of BPA in baby bottles. It justified this act by specifically referencing the primacy of the precautionary principle: the ban “represents a landmark in our efforts to protect better the health of EU citizens, in particular when it comes to our children following the precautionary principle. Due to the fact that there are uncertainties concerning the harmfulness of the exposure of infants to Bisphenol A, the [European] Commission deemed it both necessary and appropriate to take action”⁷.
Indeed, the differences in the policies around some of the most controversial issues of our time such as GMOs, fracking and authorisation of neonicotinoids can be largely traced back to the importance ascribed to the precautionary principle in each of these jurisdictions.