the precautionary principle and noise...

The Precautionary Principle and the 21st Century: A Case Study of Noise Pollution in the Ocean.

Alexander Gillespie.

LL.B; LL.M(Hons)(Auckland). Ph.D (Nottingham), Professor of Law, at the University of Waikato, New Zealand. Gillespie is the recipient of fellowships from the

Rotary, Fulbright, Rockerfeller Foundations. He was the 2004 International Research Fellow of the New Zealand Law Foundation. He is currently the Rapporteur for the World Heritage Convention.

1. Introduction. At the 1992 Earth Summit in Brazil, Principle 15 of the Rio Declaration on the Environment and Development stated,

In 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.

This principle, despite its relative simplicity, has been the subject of endless debate for the following sixteen years, over exactly what it means, and what its implications may be. Rather than ushering in an era of relatively certainty, with the provision a new principle to help guide the international community through increasingly difficult international environmental problems, the complete opposite happened, and the exact status of the principle, or what it means is commonly held to be uncertain. The purpose of this paper is to try to remove some of that uncertainty, and show exactly why the principle developed, what standing it has, and finally, how to interpret and apply it. In my opinion, the best way to do work through this area, is to apply an example of an international environmental area, which has currently not subjected to an explicit debate with regard to its connection to the precautionary principle, and see how it may be applied in that specific context. The example I have chosen to select is ocean noise. The reason I have chosen to examine this topic is because the need to adopt the precautionary principle, with regard to oceanic noise pollution, is twofold. First, the noise pollution in the ocean has been advocated by the Scientific Committee of the International Whaling Commission,1 the Parties to the ACCOBAMs2 and ASCOBANs Agreements,3 the International Union for the Conservation of Nature (IUCN),4 and the (American) National Research Council.5 Second, and despite such a multitude of calls, there is no specific international law explicitly incorporating the precautionary principle into this area. Therefore, the question needs to be asked, is the precautionary principle customary within international environmental law (that is, binding upon all countries, irrespective of the fact that it has not been explicitly adopted in this context). Having shown that the principle is customary, I will then show how it would be applied in the context of noise pollution and the marine environment. 1 Report of the Scientific Committee of the International Whaling Commission (2004). Section 12.2.5.

2 Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. 2004 Report of the Second Meeting of the Parties to ACCOBAMS.

(UNEP/CMS).

3 Resolution No. 5. Effects of Noise and of Vessels. Fourth Meeting of the Parties to the ASCOBANs Convention. (Esbjerg, 2003).

4 IUCN. Third Conservation Congress (2004, Thailand). RESWCC3.068 Undersea noise pollution. Congress reference: CGR3.RES053.Rev.1.

Paragraph 3.

5 In the process of investigating this problem, the NRC advocated a ‘precautionary management’ approach. National Research Council. (2005).

Marine Mammal Populations and Ocean Noise: Determining When Noise Causes Biologically Significant Effects. (National Academies Press,

Washington). 9.

2. Managing Risk. Most activities in life have potential risks attached to them. Some are big risks, and some area small. The question for the individual, is how to manage this risk. This question is also pertinent for decision makers trying to deal with risks which may have impacts beyond those facing isolated individuals. Accordingly, when decision-makers become aware of a risk to the humans or the environment they inhabit, the question of how to deal with such risks arise. Coping with such risk situations, from the risk analysis6 to the response (of which the precautionary principle can come into play) can be complex and controversial. As a way to avoid such difficulties, international institutions, government, civil society and private enterprise have expended considerable resources in developing and applying techniques of risk management, in the hope of being able to make the best possible decisions in the circumstances. The traditional way to manage risk was based upon the assumption that science can sufficiently foretell the outcome in terms of environmental impacts, of any given human activity. Thus, scientific predictions and management were typically quite robust. Moreover, action to protect the environment was only justified when conclusive evidence demonstrated that a certain human activity will cause substantial damage.7 Thus, as the foundation stone of international environmental law, the Trail Smelter case, explained, trans-boundary harm is actionable, only if the, ‘injury is established by clear and convincing evidence’.8 3. The Growth of Uncertainty. Traditional risk management is no longer in fashion. This is due to two problems of waiting until all of the evidence is present, before taking substantive management to control any potential risk. First, by waiting for conclusive evidence, great damage may occur. Thus, as the United Nations Environment Programme argued with regard to marine pollution, ‘waiting for scientific proof regarding the impact of pollutants discharged into the marine environment may result in irreversible damage to the marine environment and in human suffering’.9 This problem is well illustrated with numerous other environmental problems of which evidence was building up over

6 Risk analysis is related to determining the probability of an adverse effect and the severity of that effect, and scientific uncertainty is part and

parcel of these processes. See Codex Alimentarius Commission. (2005). Procedure Manual. (FAO, 15th Edn). Definitions, paragraph 11, and 23.

Risk analysis has many components, of which in the context of the precautionary principle, risk management is the most important. Indeed,

application of the precautionary principle is part of risk management, when scientific uncertainty precludes a full assessment of the risk. See

Commission Of The European Communities. Communication From The Commission on the precautionary principle. COM(2000) 1 final. Annex

III. Also, Commission of the European Communities. Communication from the Commission on the precautionary principle. COM(2000) 1 final.

Codex Alimentarius Commission. (2005). Procedure Manual. (FAO, 15th Edn). Risk Assessment. For example, with the Biosafety Risk

Assessment and Risk Management Protocol (the Cartegena Protocol), risk assessments for countries contemplating import restrictions on Living

Modified Organisms (LMOs), are carried out in accordance with particular guidance, of which dealing with scientific uncertainty is part of the

equation. See the Biosafety Protocol. Article 15 and 16 and Annex III.

7 See Trouwborst, A. (2002). The Evolution and Status of the Precautionary Principle in International Law. (Kluwer, Netherlands). 11.

8 Trail Smelter Arbitration Decision (United States v. Canada). 35 AJIL (1941). 648-736, at 716.

9 UNEP, Governing Council. (1989). Decision 15/27, May 25.

decades, but this was never deemed conclusive enough to act. The particular areas in question include, inter alia, chemical pollution and the marine environment,10 chemical pollution and fresh waters,11 benzene,12 asbestos,13 methyl tert-butyl ether,14and polychlorinated biphenyls (PCBs).15 Similar tragedies have involved the failed management of biodiversity and its associated resources, of which fisheries management is a paramount example.16 The second difficulty of waiting until evidence is assembled before acting, is that conclusive evidence is often elusive due to two types of scientific uncertainty.17 The first type of uncertainty (epistemic) derives from missing, inadequate or incomplete data. It might be linked to lack of investigation, sampling error, or measurement biases. The hallmark of this kind of uncertainty is that it can, at least in principle, be ‘solved’ by greater comprehensive investigation, monitoring or data.18 The second (ontological or variability) uncertainty relates to variability of process and uncertainty as indeterminancy. This type of uncertainty derives from the intrinsic nature of the system being studied and both the complex, and often chaotic nature of the species or mechanisms under investigation, from which ‘surprises’ occur. Surprises may be at the micro or the macro level or the micro level.19 At the macro level, this problem was well illustrated with the scientific investigations into the problem of human induced ozone depletion, whereby the ozone layer responded to enhanced chlorine in the stratosphere, in a completely unpredictable way (and thus

10 Santillo, D. (2002). ‘TBT Antifoulants: A Tale of Ships, Snails and Imposex’. In Harremoes, P. (ed). The Precautionary Principle in the 20th

Century: Late Lessons from Early Warnings. (Earthscan, London). 147-160.

11 Gilbertson, M. (2002). ‘Early Warnings of Chemical Contamination of the Great Lakes’. In Harremoes, P. (ed). The Precautionary Principle in

the 20th Century: Late Lessons from Early Warnings. (Earthscan, London). 138-147.

12 Infante, P. (2002). ‘Benzene: A Historical Perspective on the American and European Occupational Setting’. In Harremoes, P. (ed). The

Precautionary Principle in the 20th Century: Late Lessons from Early Warnings. (Earthscan, London). 35-48.

13 Gee, D. (2002). ‘Asbestos: From Magic to Malevolent Mineral’. In Harremoes, P. (ed). The Precautionary Principle in the 20th Century: Late

Lessons from Early Warnings. (Earthscan, London). 49-63.

14 Krauss, M. (2002). ‘MTBE in Petrol as a Substitute for Lead’. In Harremoes, P. (ed). The Precautionary Principle in the 20th Century: Late

Lessons from Early Warnings. (Earthscan, London). 121-137.

15 Koppe, J. (2002). ‘PCBs and the Precautionary Principle’. In Harremoes, P. (ed). The Precautionary Principle in the 20th Century: Late

Lessons from Early Warnings. (Earthscan, London). 64-77. O’Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London). 18.

16 See FAO. (2004). State of the World’s Fisheries and Aquaculture. (FAO, Rome). MacGarvin, M. (2002). ‘Fisheries: Taking Stock’. In

Harremoes, P. (ed). The Precautionary Principle in the Twentieth Century. (Earthscan, London). 10-25. Hilborn, R. (1995). ‘The Development of

Scientific Advice With Incomplete Information in the Context of the Precautionary Principle’. In FAO (ed). Precautionary Approach to Fisheries:

Scientific Papers. (FAO, Rome, Fisheries Technical Paper 350/2). 77-98.

17 Commission Of The European Communities. Communication From The Commission on the precautionary principle. COM(2000) 1 final. Page

15. MacGarvin, M. (1994). ‘Precaution, Science and the Sin of Hubris’. In O’Riordan. (ed). Supra note…… 69, 73-74.

18 MacGarvin, M. (1994). ‘Precaution, Science and the Sin of Hubris’. In O’Riordan. (ed). Supra note…… 69, 73-74. Harremoes, P. (ed). The

Precautionary Principle in the 20th Century. (Earthscan, London, 2002). 190-191.

19 O’Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London). 60-65. Lovelock, J. (1994). ‘Taking Care’. In O’Riordan, T.

(ed). Interpreting the Precautionary Principle. (Earthscan, London). 108-116. Harremoes, P. (ed). The Precautionary Principle in the 20th Century.

(Earthscan, London, 2002). 186-187, 194-196. Hunt, J. (1994). ‘The Social Construction of Precaution’.In O’Riordan, T. (ed). Interpreting the

Precautionary Principle. (Earthscan, London). 117. Weston, A., ‘Forms Of Gaian Ethics’, Environmental Ethics, 9 (1987), 220. Joseph, L. E.

(1990), Gaia: The Growth of an Idea (Arkana, London), 153-172, 192, 204, 217. Dryzek, J., ‘Green Reason: Communicative Ethics For the

Biosphere’, in Gruen, L. and Jamieson, D. (1994), Reflecting on Nature: Readings on Environmental Philosophy (Oxford University Press,

Oxford), 159, 164. Carley, M. and Christie, I. (1992), Managing Sustainable Development (Earthscan, London), 43-44.

dismissed many of the projections of ozone depletion).20 A similar problem exists for the scientific study of global warming, whereby it is possible that the Earth may ‘surprise’ humanity by responding in unanticipated ways to forced climatic change. The end result could be a dramatic catapulting of the climatic system to a new, rapid and unpleasant and most importantly – unpredicted - method of operating.21 At the micro level, this problem is well illustrated with attempts to manage biodiversity, and the unpredictable impacts that may result from failing to understand certain parts of the surrounding ecological equations. A good example of this is with regards to keystone species.22 Keystone species are recognised as those which, if removed, may have large scale, unexpected implications for other species. For example, on the island of Mauritius in the Indian Ocean, the last few aged survivors of a tree called Calvaria major are not producing any more saplings because the seeds, which the old tree still drops in abundance, must pass through the gizzard of a Dodo before they can germinate. Unfortunately, the Dodo was made extinct in 1681.23 The follow on from such thinking was well summarised by Aldo Leopold, the father of much contemporary environmental philosophy. In particular, a precautionary approach is necessary. Thus,

If the [living world], in the course of eons, has built something we like but do not understand, then who but a fool would discard seemingly useless parts ? To keep every cog and wheel is the first precaution of intelligent tinkering.24

4. The Explicit Recognition of the Precautionary Principle. Against such backgrounds, the precautionary principle has grown exponentially, in recent years, being incorporated into both laws and policies in many domestic,25 regional (especially within Europe)26 and international levels27 (since 1980).28 The 20 See Gillespie, A. (2006). Air Pollution, Ozone Depletion and Climate Change in International Law. (Brill, London). Chapters 3 and 8.

21 IPCC. (2001). Climate Change 2001: Impacts, Adaptation and Vulnerability. (Cambridge University Press, Cambridge). 7. . Pearce, F. (2003).

‘Doomsday Scenario’. New Scientist. Nov 22. 40-43. IPCC. (1996) Climate Change 1995: Impacts, Adaptations and Mitigation. (Cambridge

University Press, Cambridge). 4. Alley, R. (2004). ‘Abrupt Climate Change’. Scientific American. Nov. 40-48. cf. Nielson, R. (2004). ‘Not Quite

The Day After Tomorrow’. New Scientist. Sep 11. 6. Bunyard, P. (2004). ‘Crossing the Threshold’. Ecologist. Feb. 55-58.Streets, D. (2000).

‘Exploring the Concept of Climate Surprise’. Global Environmental Change. 10: 97-107. Kates, R. (1996). ‘Expecting the Unexpected’.

Environment. 38(2): 6-7.

22 Doak, D.F. et al. (1993). 'The Keystone-Species Concept in Ecology and Conservation. Bioscience. 43: 219-224. , Stork, N.E. (1993).

'Extinction or Co-Extinction Rates ?' Nature. 366: 307 Ehrenfeld, D. (1978), The Arrogance of Humanism (Oxford University Press), 195-197.

23 The Closing Circle: Nature, Man and Technology. (Columbia University Press. New York). 5. See Wilson, E. O., ‘The Little Things That Run

the World’, in Pierce, C. (1995) (ed), People, Penguins and Plastic Trees: Basic Issues in Environmental Ethics (Wadworth, London), 139-142.

Weizsacker, C., ‘Competing Notions of Biodiversity’, in Sachs, W. (1993) (ed), Global Ecology: A New Area of Political Conflict (Zed, London),

117, 126-27.

24Leopold A. (1953) Round River. (Oxford University Press. Oxford). 146-147.

25 Note, it is somewhat artificial to suggest a country is for or against the principle. The more sound approach is to note that many countries utilise

it in some areas of their environmental portfolio,s but not necessarily in others. See Sunstein, C. (2005). Laws of Fear: Behind the Precautionary

Principle. (Cambridge University Press, Cambridge). O’Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London). 26.

Bodansky, D. ‘The Precautionary Principle in US Environmental Law’. In O’Riordan, 203-225. Haigh, N. ‘The Introduction of the Precautionary

Principle into the UK’. Also in O’Riordan. 229-253.

26 The PP is an obligation imposed upon the European Community, through Article 174 of its foundation Treaty. Although the principle is

adumbrated in the Treaty, it is not defined there, and it has fallen to the Court of Justice of the European Communities, and various policy

declarations from the Community, to help flesh out the precautionary principle in its European Context. See for example the European

Commission’s decision banning the exportation of beef from the United Kingdom to reduce the risk of BSE transmission (Judgements of 5 May

principle is settled in international trade law,29 and was remarkably well entrenched at the 1992 Earth Summit (and reiterated at the 2002 World Summit on Sustainable Development)30 in both 15 of the Rio Declaration (as noted at the beginning of this paper) and in the primary Conventions to emerge from the Earth Summit. The primary conventions were the Convention on Biological Diversity31 and the United Nations Framework Convention on Climate Change. The precautionary principle was also liberally sprinkled throughout Agenda 21 in multiple areas. For example, when dealing with the multifarious threats to the world’s oceans, Chapter 17 of Agenda 21 recommended ‘a precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine environment’.32 Similar extortions were also recorded with regard to areas such as toxic chemicals33 and hazardous wastes.34 With regard to the latter subset of environmental concerns, later conventions on this area, such as the 1999 Stockholm Convention on Persistent Organic Pollutants came to conclude that ‘precaution underlies the concerns of all the Parties and is embedded within this Convention’,35 and the Parties were ‘mindful of the precautionary approach as set forth in Principle 15 of the Rio Declaration, with regard to the need to protect human health and the environment from persistent organic pollutants’.36 In some instances, such as with the 1972 London Dumping Convention, the original Convention has been completely rewritten by Protocol so as to incorporate the principle.37 Other conventions which were inaugurated before the advent of the precautionary principle, such as the Convention on Wetlands of International

1998, cases C-157/96 and C-180/96). Commission Of The European Communities. Communication From The Commission on the precautionary

principle. COM(2000) 1 final.. Also, Zwanenberg, P. (2002). ‘Mad Cow Disease: 1980s to 2000: How Reassurances Undermined Precautions’. In

Harremoes, P. (ed). The Precautionary Principle in the 20th Century: Late Lessons from Early Warnings. (Earthscan, London). 170-184.

27 See Trouwborst, A. (2002). The Evolution and Status of the Precautionary Principle in International Law. (Kluwer, Netherlands). 261-284, 286.

Van Dyke, J. (2004). ‘The Evolution and International Acceptance of the Precautionary Principle’. In Caron, D. (ed). Bringing New Law to Ocean

Waters. (Nijhoff, London). 357, 360-364

28 For example, the 1980 United Nations Convention on the Law of the Sea (UNCLOS) suggested that nuclear powered ships exercising innocent

passage through territorial waters, shall ‘observe special precautionary measures established for such ships established by international agreements’.

UNCLOS. Article 23. The UNCLOS also made the monitoring, and reporting therof, of the risks or effects of pollution on the marine environment,

a broad obligation. This was buttressed by the obligation imposed upon them, to assess the potential effects of any of there activities, where they

have reasonable ground for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and

harmful changes to the marine environment. See articles 204 to 206.

29 See Article 5.7 of the SPS Agreement.

30 WSSD. Plan of Implementation. Paragraphs 22 and 103 (f).

31 CBD. Preamble. In particular, see Decision II/10 on marine and coastal biodiversity, Decision V/6 on the Ecosystem Approach, Decision VII/12

on Sustainable Use; and Decisions VI/23 and V/8 on Alien Species.

32 Agenda 21. Chapter 17. Paragraph 1.

33 Chapter 19 of Agenda 21 recommended, with regard to risk assessment, the ‘taking into account [of a] precautionary approach’. Agenda 21.

Chapter 19. Paragraph 14 (a). Likewise, with risk reduction issues, ‘precautionary measures’ should be employed. Chapter 19. Paragraph 48 and 60

(d).

34 Agenda 21. Chapter 19. Paragraph 32. This was particularly so with radioactive waste, where a standing Convention (the London Dumping

Convention) was advised to ‘take into account’ and make ‘appropriate usage of’ the precautionary principle when dealing with low-level

radioactive wastes. Chapter 19. Paragraph 22 (5)(b) and (c).

35 Stockholm Convention on Persistent Organic Pollutants. ........... Preamble.........

36 Stockholm Convention on Persistent Organic Pollutants. Article 1.

37 1996 Protocol To The Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter, 1972. Available from the

International Maritime Organisation.. The preamble to the Protocol especially noted ‘ the evolution towards approaches based on precaution and

prevention’.

Importance Especially as Waterfowl Habitat (the Ramsar Convention)38 and the Convention on Migratory Species (CMS), have come on to subsequently endorse it within their work. For example, with the CMS, the Parties came to not only utilise reference to the precautionary principle in their own thematic resolutions,39 but have also recommended that the precautionary principle be incorporated into any future Agreements under their auspice.40 Accordingly, the principle is recognisable within the Eurobats (the Agreement on the Conservation of Populations of European Bats),41 the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANs)42 the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Areas (ACCOBAMS)43 the Africa-Eurasian Waterbird Agreement (AEWA)44 and the Agreement on the Conservation of Albatross and Petrels (ACAP).45 Thus, as one of its fundamental obligation, ACAP signatories agreed,

In implementing such measures the Parties shall widely apply the precautionary approach. In particular, where there are threats of serious or irreversible adverse impacts or damage, lack of full scientific certainty shall not be used as a reason for postponing measures to enhance the conservation status of albatrosses and petrels.46

Elsewhere, such as with international fisheries law, the principle has become widely established in powerful over-aching instruments such as the 1995 United Nations Straddling Fish Stock Agreement.47 Whilst outside of formal conventions, it has spread throughout some regional bodies, such as with the North Sea Commission, which over a period of 25 years, has sought to apply the precautionary principle to multiple areas. These areas, which are now linked to the precautionary principle for the North Sea Commission, range from chemical pollution, to bycatch and even the decommissioning of off-shore oil refineries.48 Due to such explicit recognitions of the precautionary principle, a number of commentators have suggested that it has become customary international law. That is,

38 UNTS. 14583. With regard to subsequent resolutions, see for example, resolution VIII/14. New Guidelines for Management Planning of Ramsar

Sites. Chapter IV. Also, Resolution VIII/1. Guidelines on the Allocation and Management of Water.

39 Resolution 7.5. Wind Turbines and Migratory Species. (COP 7, 2002, Bonn).

40 Resolution 4.4. Strategy for the Future Development of the Convention. Annex. Point 16. (COP 4, 1994, Nairobi).

41 Resolution 4.7. Wind Turbines and Bat Populations. Report of the Fourth Session of the MOP to EUROBATS, 2003. Available from the

Secretariat, at http://www.eurobats.org/. pp. 50.

42 ASCOBANS. MOP 3 (2000). Incidental Take of Small Cetaceans.

43 ACCOBAMS. Article II.4.

44 AEWA. Article II.2.

45 ACAP. Preamble.

46 ACAP. Article II (2).

47 United Nations Conference On Straddling Fish Stocks And Highly Migratory Fish Stocks: Agreement For The Implementation Of The

Provisions Of The United Nations Convention Of The Law Of The Sea Of 10 December 1982, Relating To The Conservation And Management Of

Straddling Fish Stocks And Highly Migratory Fish Stocks. ILM 1542. 34 Article 6.1, 6. (3) (d). The precautionary approach has also been widely

adopted by a number of fishery bodies (CCMALR, IPHC, IWC, ICES, NAFO, NASCO, ICCAT, MHLC, SEAFO), and its implementation is

actively discussed in some others such as the APFIC, WECAF and GFCM.

48 The 1990 Hague Declaration. Ministerial Declaration of the Third International Conference on the Protection of the North Sea, The Hague, 8

March 1990. Also, the Esbjerg Declaration, 1995. Paragraphs 1, 16, 54 and 58.

it has a general applicability, which is obligatory (as opposed to optional) outside of regime specific confines noted above.49 This suggestion is buttressed by the supporting views of international legal opinions in three different forums. The first forum is the International Court of Justice (ICJ). Here, support for the precautionary principle as customary international law has been voiced approvingly by a number of judges in the Nuclear Tests Case,50 the Nuclear Weapons Case,51 and more directly within the Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia).52 In this last instance, Hungary utilised the precautionary principle, as part of their defence,53 and the Court acknowledged that ‘new norms and prescriptions of international environmental law’ had emerged, and it noted approvingly that both Parties agreed on the need to take the required precautionary measures.54 Moreover, Judge Weeramantry’s judgement focused upon the ideal of sustainable development, of which he included the precautionary principle, as customary international law. The customary value of the precautionary principle has also been recognised within the Law of the Sea Tribunal. For example, in the Southern Bluefin Tuna (SBT) Case,55 Australia and New Zealand argued that the Tribunal should have regard to the precautionary principle in their reasoning,56 and that the judgement should require all of the Parties to ‘act consistently with the precautionary principle’ in fishing for SBT.57 The resultant judgement was one where, as Ad-Hoc Judge Shearer explained, the principle was accepted in everything but name.58 Moreover, the need to act

49 Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and Natural Resource Management (IUCN, Gland). 5-6. Cameron,

J. (1998). ‘The Status of the Precautionary Principle in International Law’. In O’Riordan, T. (ed). Interpreting the Precautionary Principle.

(Earthscan, London). 263-283.

50 Notably Sir Geoffrey Palmer, Korma and Weeramantry were all in support of this point. Sir Palmer argued that the norm involved in the

precautionary principle may now [in 1995] be a principle of customary international law relating to the environment), and Judge Weeramantry,

suggested that the core of the principle was ‘sufficiently well established in international law for the Court to act upon it’. See International Court of

Justice. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgement of 20 Decemeber 1974 in the

Nuclear Tests (New Zealand v France) Case. Paragraphs 89 and 91. Also, Dissenting judgement of Judge Weeramantry, at 352.

51 In particular, Justice Weeramantry named the precautionary principle, as well as a separate ‘principle that the burden of proving safety lies upon

the author of the act complained of’ as part of a set of general principles of international environmental law. International Court of Justice. Legality

of the Threat of Use of Nuclear Weapons. ICJ Reports (1996). 226.

52 1997, 25 September, General List, No. 92. Also reprinted in 37 ILM (1998). 162.

53 See paragraph 97.

54 See paragraph 113.

55 International Tribunal For The Law Of The Sea. 27 August 1999, List of cases:Nos. 3 and 4. Southern Bluefin Tuna Cases (New Zealand v.

Japan; Australia v. Japan). Requests for provisional measures. Order.

International Tribunal For The Law Of The Sea. 27 August 1999, List of cases:Nos. 3 and 4. Southern Bluefin Tuna Cases (New Zealand v. Japan;

Australia v. Japan). Requests for provisional measures. Order.


Japan; Australia v. Japan). Requests for provisional measures. Order. Paragraph 28 (1)(e) and 29 (1)(e).


Japan; Australia v. Japan). Requests for provisional measures. Order. Paragraphs 31 (3) and 34 (3).

58 Although Ad-Hoc Judge Shearer noted the difficulties of applying the precautionary principle to fisheries management, and he cast doubt on its

overall utility of the principle as a ‘mandate for action’ the precautionary approach still, clearly, had merit and was, in his opinion, utilised by the

Tribunal in the provisional judgement. See also the comments from Judge Lain (at paragraph 16) and Judge Treves at paragraph 9. For further

comment, see Van Dyke. Supra note………372.

‘prudently’ in the face of scientific uncertainty and the risk of serious harm to the stock was underscored.59 The final area where a customary value of the principle has been noted, was in the Disputes Tribunal of the World Trade Organisation, and the ‘beef-hormone’ case. In this instance, the European Communities restriction of beef due to possible adverse impacts related to the utilisation of hormones for growth promotion purposes, were invoked with the justification of the precautionary principle, allegedly as part of customary international law.60 Although this case was unsuccessful at both Panel and Appeal level, and questions were raised over its overall status outside of international environmental law, the Panel nevertheless concluded that that the precautionary principle was, in fact, reflected in parts of the Sanitary and Phytosanitary Measures (SPS) Agreement.61 5. The Argument Against Customary Status. Against the above contentions, it can be suggested that the precautionary principle has not yet attained the status of customary international law. That is, outside of the explicit adoption of the principle in some international texts, it has no general application to other areas. A large part of the justification for this approach is due to the notable absence of the principle in some areas of international environmental law, such as with global forestry policy.62 In other areas, it receives only scant attention, such as with the International Code of Conduct on the Distribution and Use of Pesticides,63 and the Rotterdam Convention on the Prior Informed Consent Procedure For Certain Hazardous Chemicals and Pesticides in International Trade.64 Alternatively, it may be mentioned within a Convention, such as the Stockholm


Japan; Australia v. Japan). Requests for provisional measures. Order. Paragraph 77.

60 Utilised in support of its claim that its measures in dispute are based on a risk assessment. EC Measures Concerning Meat and Meat Products

(Hormones) Complaint by the United States. Report of the Panel. WT/DS26/R/USA. 18 August 1997. Paragraph 8.157.

61 Appellate Body. EC Measures Concerning Meat And Meat Products (Hormones). AB-1997-4. Report of the Appellate Body. WT/DS26/AB/R.

Paragraph 124-25.

In particular, Article 5.7, as well as the sixth paragraph of the preamble and in Article 3.3. Paragraph 6 of the Preamble embraces precaution by

encouraging harmonization of national SPS measures with international standards without requiring Members to change their sovereignly-

determined appropriate levels of health protection. Article 3.3 of the SPS Agreement entails a precautionary approach because it explicitly permits

Members to adopt SPS measures which are more stringent than measures based on the relevant international standards.

62 Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and Natural Resource Management (IUCN, Gland).23. Although,

in fairness, global forestry policy lacks even the most basic conservation objectives, let alone more specified tools such as the precautionary

principle.

63 International Code of Conduct on the Distribution and Use of Pesticides. As adopted by the Hundred and Twenty-third Session of the FAO

Council in November 2002. Although the need to ‘take all precautions… to protect workers, children etc’ is mentioned, the precautionary

principle/approach is not.

64 Rotterdam Convention on the Prior Informed Consent Procedure For Certain Hazardous Chemicals and Pesticides in International Trade

Rotterdam Convention on the Prior Informed Consent Procedure For Certain Hazardous Chemicals and Pesticides in International Trade. The

Rotterdam Convention only considers ‘precautionary measures’ with regard to information exchange between Parties.

Convention on Persistent Organic Pollutants, but not fleshed out,65 or the intention may be to flesh it out, such as with Biosafety Protocol, but the process is very slow.66 There are also areas of great uncertainty (awaiting to be addressed) with regard to its application when there are potential clashes between regimes, such as the potential disharmony between the WTO and the multilateral environmental regime, and examples like Genetically Modified Organisms, in particular.67 Finally, there is considerable academic debate over whether strong or weak versions of the precautionary principle apply. When viewed within the scope of the existing recordings of the principle, it is clear that there is a relatively wide variety of applications. The dividing points between strong and weak versions are the nature of the threat, the triggering point for the principle, and the reversal of the burden of proof.68 Accordingly, the customary status claim has been strongly challenged by the assertion that there are many varieties of the principle (at national, regional and international levels) and they often point to different conclusions over exactly what the principle is, or is not. As such, it cannot be considered customary, as exactly what constitutes it core cannot be agreed upon.69 This difference of opinion on how to interpret the precautionary principle was most obvious with the MOX Plant Case (on the disposal of low level nuclear waste into the Irish Sea) before Law of the Sea Tribunal case, where both Ireland and the United Kingdom both agreed that the principle applied, but had significant differences on how this was so.70 Unfortunately, the Tribunal never got to rule on the merits of this case due to a series of procedural obstacles.

65 Beyond a cursory noting with regard to one of the possible Annex listings, of which the Committee is obliged to consider, inter alia,

‘consideration of precaution and prevention’. Article 9 (9). Annex C. Section B.

66 The Parties to the Protocol established a process to help develop guidance and a framework for a common approach in risk assessment and risk

management. Originally conceived as part of the medium term programme of work for the Parties, (Decision BS-I/12) at second meeting of the

Parties, risk assessment and risk management was directly considered. Decision BS-II/9. Risk Assessment and Risk Management. In this latter

instance, in addition to hosting a series of workshops on capacity-building and exchange of experiences on risk assessment risk management of

LMOs an Ad Hoc Technical Expert Group on Risk Assessment was established. This Ad-Hoc Group was tasked with further consideration of the

nature and scope of existing approaches to risk assessment, evaluate such approaches and identify any gaps, and identify capacity-building needs.

See the Terms of Reference for the Ad Hoc Technical Expert Group on Risk Assessment.

67 See Safrin, S. (2002). Treaties in Collision? The Biosafety Protocol and the World Trade Organization Agreements. 96 A.J.I.L. 606. Also, Hill,

J. (1998). ‘The Precautionary Principle and the Release of Genetically Modified Organisms’. In O’Riordan, T. (ed). Interpreting the Precautionary

Principle. (Earthscan, London). 172-202.

68 The weak approach is supported by an optimistic assumption that environmental resources are not capable of exhaustion, and if they are, suitable

replacements can be found. In such a setting, the role of precaution is mostly as a spur to innovation and managerial adaptation. This is especially

so where the threat of irreversible damage is palpable and the benefits of intervention are clear. This version, ‘pushes the burden of proof out a bit,

into the anticipation of possible harm or expected proof of harm’. Conversely, the strong version of the principle encompasses a pessimistic

worldview whereby precaution is necessary because the ecology is not believed to be robust, and requires much greater interventions than have

been achieved in the past. For a very good critiques of the principle, and the need to have ‘limits’ upon it, see Sunstein, C. (2005). Laws of Fear:

Behind the Precautionary Principle. (Cambridge University Press, Cambridge). Sunstein, C. (2002). Risk and Reason: Safety, Law and the

Environment. (Cambridge University Press, Cambridge). O’Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London). 19-20

69 Stone, C. (2001). ‘Is There a Precautionary Principe ?’ 31 Environmental Law Reporter. 10790. Cameron, J. (1995). ‘The Status of the

Precautionary Principle in International Law’. In Freestone, D and Hey, E. (ed). The Precautionary Principle and International Law. (Kluwer, the

Netherlands). 29, 44-45.

70 Whereas Ireland contended it applied, and was part of customary international environmental law, the UK did not disagree, but argued that their

practice in relation to the MOX reprocessing plant was entirely consistent with the precautionary principle. See the MOX Plant Case (Ireland v.

UK). (ITLOS 2001). 41 International Legal Materials (2002). 405. See the Memorial of Ireland, at paragraph 6.25 and 6.26. See also the Rejoinder

from the UK, at paragraph 8.34.

Against this backdrop of uncertainties, all of the three international adjudicative bodies noted above (the ICJ, Law of the Sea Tribunal, and the Panels of the World Trade Organisation) have all, aside some overlapping interpretation issues,71 notably, omitted any definitive statement on the strength of the principle as customary international law. The body which has had the strongest views on this matter has been the Appellate Body of the World Trade Organisation. This Body noted that whether the precautionary principle has been accepted as a principle of general or customary international law is ‘less than clear’ and that, ‘at least outside the field of international environmental law, [the principle] still awaits authoritative formulation’.72 This conclusion was warranted because of the omissions of the ICJ and the UNCLOS Tribunal in this area. The omission to definitively rule on the customary status of the precautionary principle was particularly notable at the ICJ with the Nuclear Tests case (the majority of the Court did not address the debate around the precautionary principle)73 and the with the Case Concerning the Gabcikovo-Nagymaros Project74 where although the Court acknowledged that ‘new norms and prescriptions of international environmental law’ had emerged, it did not pronounce very explicitly on the content or meaning of the new norms. Likewise, with the first SBT Case before the Law of the Sea Tribunal, although the Tribunal may have accepted the principle in everything but name, it nevertheless, did not accept it in name. Any chance to rectify this omission was eclipsed with the second order from the Law of the Sea Tribunal on this matter, as the Tribunal was not allowed to examine the merits of the case (which would have been useful as Japan argued directly contra to New Zealand and Australia that ‘it was doubtful that the precautionary principle had attained the status of a rule of customary international law’)75 due to procedural barriers and lack of jurisdiction for the UNCLOS Tribunal.76 Accordingly, it revoked the provisional measures instituted by the ITLOS, while declaring at the same time that this did not imply that the Parties may disregard their effects. Unfortunately, the inability of the UNCLOS Tribunal to deal with this issue was repeated with the MOX Plant Case (on the disposal of low-level nuclear waste into the Irish sea) where, once more, the Tribunal never got to rule on the merits of this case due to a series of procedural obstacles.77

71 Consistent with international treaty interpretation in general, the ICJ agreed that general rules (such as the precautionary principle) cannot over-

ride specifically agreed rules which were designed to address particular issues. A very similar conclusion was reached, at the Panel and Appeal

levels, by the World Trade Organisation, in that a generic precautionary principle, could not be taken to pre-empt a specific treaty obligation which

had already incorporated and given a specific meaning on how to deal with the issue at hand.

72 Appellate Body. EC Measures Concerning Meat And Meat Products (Hormones). AB-1997-4. Report of the Appellate Body. WT/DS26/AB/R.

Paragraph 122-23.

73 International Court of Justice. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgement of 20

Decemeber 1974 in the Nuclear Tests (New Zealand v France) Case. Paragraph 34.

74 1997, 25 September, General List, No. 92. Also reprinted in 37 ILM (1998). 162.

75 Southern Bluefin Tuna Case: Australia and New Zealand v. Japan. Award on Jurisdiction and Admissibility. August 4, 2000. Rendered by the

Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea. Paragraph 34.

76 Southern Bluefin Tuna Case: Australia and New Zealand v. Japan. Award on Jurisdiction and Admissibility. August 4, 2000. Rendered by the

Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea. Paragraphs 31 and 33.

77 See the MOX Plant Case (Ireland v. UK). (ITLOS 2001). 41 International Legal Materials (2002). 405. See the Memorial of Ireland, at

paragraph 6.25 and 6.26. See also the Rejoinder from the UK, at paragraph 8.34.

6. The Precautionary Principle as Customary International Environmental Law. On balance, the opinion of this author is that the evidence would suggest that the principle has attained a soft form of customary status. This conclusion can be reached by examining three steps. These are the case law, the relative coherence of the principle, and a clear understanding of exactly what the core of the principle is, and its temporary nature. Moreover, even with the relatively weak and temporary nature of the precautionary principle, its application remains hemmed in by five additional considerations, such as, inter alia, cost-benefit analysis. A. The Case Law. The first point that needs to be noted with regard to the principle as customary international environmental law, is that although neither the ICJ, UNCLOS Tribunal or the Panels of the WTO have not explicitly recognised the principle as customary, conversely, none them have explicitly stated said the principle does not exist in a customary form (within international environmental law). This is a particularly important fact, given the amount of governments which have argued for the existence of the principle in these forums, and judges which have explicitly stated they have utilised it in their judgements. Moreover, even though the WTO suggested it was questionable whether the principle was customary in international law in general, it explicitly did make the same suggestion with regard to international environmental law in particular. As such, it may, at a minimum have a customary status within international environmental law in particular, if not international law in general. However, it is very important not to over-egg the cake with this conclusion that it has customary status. That is, the strength of the principle should not be exaggerated by attempting to turn it into an obligation of precautionary conduct with specific normative status.78 This conclusion is reinforced by the development of a relatively coherent version of the precautionary principle which is ‘weak’ and not strong. Thus, the practice to date suggests a low common denominator of the principle. B. The Relative Coherence of a Weak Version of the Principle. Despite the theoretical attraction of debates over strong and weak versions of the precautionary principle, in practice the issue is not clear cut, as the three defining characteristics, which are meant to separate the strong and weak versions of the principle, are in practice, are usually intermingled. The dividing points are the nature of the threat, the triggering point for the principle, and the reversal of the burden of proof. Thus, while one application may have two strong dividing points, it may also possess a weak one. It is rare that any application of the principle have all three dividing points on one side or the other. Such hybrids, due to the inevitable mix of ingredients of the principle, tend to drastically mitigate any absolutist claims about the principle.79 The outcome of this mixing is that the principle is more weak, than

78 See Birnie, P and Boyle, A. (2002). International law and the Environment. (Oxford University Press, Oxford). 118-121.

79 Nolkaemper, A. (1995). ‘What You Risk Reveals What You Value: And Other Dilemmas Encountered in the Legal Assault on Risks’. In

Freestone, D and Hey, E. (ed). The Precautionary Principle and International Law. (Kluwer, the Netherlands). 13.

strong.80 Accordingly, any attempts to ascertain what is the appropriate customary approach, should veer towards the weak, not the strong versions. Thus, the threats must be serious, the standard of proof must be substantive, and the burden of proof is not hoisted on any particular Party, unless that Party may be in possession of the evidence which reduces the uncertainty. (i). The Level of Threat. A strong version of the principle suggests that any harm may trigger its application. A weak version requires that the harm be ‘serious’ or ‘irreversible’. In the weak version, threats of only minor or trivial damage do not raise the relevance of precaution. Relatively few conventions have low thresholds for harm.81 Conversely, the standard practice of most conventions, and the Principle 15 of the Rio Declaration, is that the threats must be ‘serious or irreversible’ A UNEP group meeting gave examples of ‘serious or irreversible’ harm as, ‘extinction of species, widespread toxic pollution or major threats to essential ecological processes’.82 This approach was followed by the Law of the Sea Tribunal in the (first) Tribunal Decision on Southern Bluefin Tuna. In particular, a substantive part of the judgement turned on the idea of ‘serious biological concern’ over the status of the SBT, and the need to prevent ‘serious harm to the stock of southern bluefin tuna’83 Likewise, the Second International Conference on the Protection of the North Sea in 1987, followed this route, emphasising the utility of the principle when dealing with ‘the most dangerous substances [that is, persistent organic pollutants which bio-accumulate]8485 (ii). The Standard of Proof. Once the threat threshold is settled, the second question is to what level must this threat be demonstrated. The prima-facie answer to this problem is that the threat must be based on ‘sound science’ and/or there are ‘reasonable grounds for concern’ before the precautionary principle becomes triggered.86 However, ascertaining what is ‘sound’ or reasonable’ is not obvious, as there are four possible levels of standards of proof at hand, and they span the spectrum from the strong to weak versions of the precautionary principle. The available options range (in sequence), from an ‘identifiable’ scientifically based suspicion of a potential risk, through to reasonable grounds for concern based upon reliable scientific data; conclusions based on the balance of evidence, and finally, beyond reasonable doubt. The latter two representing

80 O’Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London). 18.

81 However, some do. The one example I have been able to locate is the Bamako Convention on the ban of the Import into Africa and the Control

of Transboundary Movement of Hazardous Wastes within Africa (1991). This stipulates that the risk ‘may cause harm to humans or the

environment’ without any specification of minimum level of risk. See Article 3 (f).

82 See UNEP. (1996). Final Report of the Expert Group Workshop on International Environmental Law Aiming at Sustainable Development.

UNEP/IEL/WS/3/2.


Japan; Australia v. Japan). Requests for provisional measures. Order. Paragraph 77.

84 The 1987 London Declaration. Second International Conference on the Protection of the North Sea, London, 24-25 November 1987. Paragraph

7.


XV (ii).


2. Trouwborst, A. (2002). The Evolution and Status of the Precautionary Principle in International Law. (Kluwer, Netherlands). 286.

weak versions of the precautionary principle which require a scientific majority behind them, and thus the standard of proof before the precautionary principle is triggered is relatively high. The former two operate with minority scientific opinion, and are thus viewed as strong versions of the precautionary principle.87 The practice in this area is somewhere between the two extremes. Thus, whilst the Second International Conference on the Protection of the North Sea emphasised that ‘absolutely clear scientific evidence’ was not necessary to trigger the principle,88 there must be ‘reason to assume’ that damage was ‘likely’.89 This ‘likely’ standard was also repeated in the 1996 Protocol to the London Convention.90 The practice of the WTO is that a precautionary measure may be based on a ‘less objective appraisal’ it must nevertheless include an evaluation of risk. Moreover, the risk assessment is not confined to purely quantitative scientific data and may include non-quantifiable data of a factual or qualitative nature.91 In sum, although there is no clear customary practice in this area, the dividing line between the two is relatively close. This is that the scientific standard of proof, must be substantive. That is, although it may not have to be a majority opinion, it should be at least, a reputable scientific minority. (iii). Possession of the Obligation to Discharge the Burden of Proof. The final definitive characteristic between strong and weak versions of the precautionary principle relate to who has the obligation to discharge the burden of proof. Weak versions do not shift the burden of proof. Thus, a product or process is assumed to be ‘innocent’ and it for those who allege it has a detrimental impact, to prove it.92 This is the practice with the WTO, with the burden falling on those who attempting to demonstrate environmental harm and subsequent trade restrictions.93 In a similar vein, with international fisheries, it was agreed with the Straddling Stocks Agreement that if information for determining reference points for a fishery is poor or absent, quotas may be set by analogy to similar and better-known stocks may be set.94 This is notable, as it built on an earlier FAO position, that the precautionary principle, in matters of fisheries should not reverse the burden of proof, whereby an activity must be proven safe before it can proceed. Rather, the standard of proof to be used in decisions regarding fisheries related matters should be commensurate with the 87 See Bodansky, D. (2004). ‘Deconstructing the Precautionary Principle’. In Caron, D. (ed). Bringing New Law to the Ocean Waters. (NIjhoff, the

Netherlands). 381, 387-388. Hickey, J. (1995). ‘Refining the Precautionary Principle in International Environmental Law’. 14 Virginia Journal of

Environmental Law. 423, 449-450. Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and Natural Resource

Management (IUCN, Gland). 9. Foster, K. (2000). ‘Science and the Precautionary Principle’. Science. 288 (5468). 979-981. Bodansky, D. (2004).

‘Deconstructing the Precautionary Principle’. In Caron, D. (ed). Bringing New Law to the Ocean Waters. (NIjhoff, the Netherlands). 381.


7.


XVI.

90 1996 Protocol. Article 3.

91 This interpretation has been confirmed by the WTO’s Appellate body in the case of growth hormones, which rejected the panel’s initial

interpretation that the risk assessment had to be quantitative and had to establish a minimum degree of risk. EC Measures Concerning Meat and

Meat Products (Hormones) Complaint by the United States. Report of the Panel. WT/DS26/R/USA. 18 August 1997. Paragraph 8.161-162.

92 Commission Of The European Communities. Communication From The Commission on the precautionary principle. COM(2000) 1 final. Pages

3-4.

93 EC Measures Concerning Meat and Meat Products (Hormones) Complaint by the United States. Report of the Panel. WT/DS26/R/USA. 18

August 1997. Paragraph 8.161-162.

94 Article 6. Annex II to the Straddling Stocks Agreement.

potential risk to the resource, while also taking into account the expected benefits of the activities.95 Strong versions of the precautionary principle shift the burden of proof. That is, those who wish to do an activity or process, have to prove that it will not cause damage.96 New Zealand argued this position in its appearance before the ICJ at the Nuclear Tests case. Thus, ‘the burden of proof fell on a State wishing to engage in potentially damaging environmental conduct to show in advance that its activities would not cause contamination’.97 Although this point was not fully examined by the Court, Judge Korma argued (and Judge Weeramantry agreed),98

Where a Party complains to the Court of possible environmental damage of an irreparable nature which another Party is committing or threatening to commit, the proof or disproof of the matter alleged may present difficulty to the claimant as the necessary information may largely be in the hands causing or threatening the damage.99

This approach, where the burden of proof is reversed, is common in a number of environmental regimes, such as with substances which are assumed to be dangerous, and evidence must be produced which shows that they are not dangerous. For example, with the 1996 Protocol to the London Dumping Convention,100 the presumptions are reversed, and the dumping of wastes is prohibited unless the item dumped is explicitly listed as being safe to dump into the ocean. This approach is also common within in a number of species management regimes, where some flora or fauna is categorised as threatened or endangered. In such instances, those who wish to utilise the flora or fauna in question, must prove that their intended acts are not to detriment of the species. Likewise, some countries take a precautionary approach to the control of alien invasive species by prohibiting the import of all species except those assessed in advance as ‘safe’.101 Against such a division of practice, it is difficult to suggest exactly where the burden of proof falls. Aside the caveat that in some regimes, the burden has been explicitly reversed, - but with the consent of the signatories, the same cannot be said for all regimes. The possible exception being, as Judge Korma noted, in instances where one Party may be in possession of the evidence which may reduce the scientific uncertainty. 7. The Core of the Principle as a Temporary Step. 95 See FAO. (1995). A Precautionary Approach to Fisheries. (FAO, Rome, Fisheries Technical Paper No 350/1). Pp2-3.

96 Hunt, J. (1994). ‘The Social Construction of Precaution’. In O’Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London).

117. Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and Natural Resource Management (IUCN, Gland).7-8.


Decemeber 1974 in the Nuclear Tests (New Zealand v France) Case. Paragraph 63 and 68. Note, the Court did not address the merits of this point.

98 Dissenting judgement of Judge Weeramantry, at 348.


Decemeber 1974 in the Nuclear Tests (New Zealand v France) Case. Page 342.

100 1996 Protocol To The Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter, 1972.

101 See Conference Resolution 9.24 of the CITES Conference. Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and

Natural Resource Management (IUCN, Gland). 13.

The core of the principle, is that if there is scientific uncertainty, it is ‘better to be safe than sorry’ or ‘take care’ before proceeding without restraint. Such care should be taken until there is greater scientific certainty on which way is, or is not, safe to proceed.102 The underlying point is that if there is scientific uncertainty, that uncertainty that cannot be resolved at that point in time,103 and that uncertainty cannot cannot be utilised as a justification for inaction.104 Thus, as the FAO Code of Conduct for Responsible Fisheries iterated,105 ‘the absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures’.106 However, the core of the principle does not stop there. Rather, a second step is involved. In particular, steps must be taken to resolve the scientific uncertainty. Thus, it is vital to realise that the precautionary principle is temporary. As such, the principle, and any measures adopted under its auspice, are of a transitory nature and may be eclipsed when greater scientific evidence is ascertainable, and the Parties involved are able to make a final decision decision on the appropriate path to follow.107 Some regimes, such as the Biosafety Protocol, require Parties pursuing precautionary measures to actively seek out more substantiated scientific backgrounds in the interim.108 Others, such as the World Trade Organisation and its SPS Agreement specifically stipulate that provisional measures are only permissible for a ‘reasonable time’, pending the availability of more reliable scientific data. This obligation is buttressed by the obligation to work towards the development of scientific knowledge in this area, so that a more complete assessment may be completed. The WTO has

102 Bodansky, D. (1991). ‘Scientific Uncertainty and the Precautionary Principle’. Environment. 33:4.


Japan; Australia v. Japan). Requests for provisional measures. Order. Paragraphs 79 and 80.

104 Freestone, D & Hey, E. (1995). ‘Origins and Development of the Precautionary Principle’. In Freestone, D and Hey, E. (ed). The

Precautionary Principle and International Law. (Kluwer, the Netherlands). 13. Cooney, R. (2004). The Precautionary Principle in Biodiversity

Conservation and Natural Resource Management (IUCN, Gland).5. Freestone, D & Hey, E. (1995). ‘Origins and Development of the

Precautionary Principle’. In Freestone, D and Hey, E. (ed). The Precautionary Principle and International Law. (Kluwer, the Netherlands). 13.

105 FAO. (1995). Code of Conduct for Responsible Fisheries. (FAO, Rome).

106 Likewise, the Biosafety Protocol agreed that lack of scientific certainty on the extent of the potential adverse effects of a living modified

organism on the conservation and sustainable use of biological diversity ... shall not prevent that Party from taking a decision. Biosafety Protocol.

Article 6.2. and 10 (6).

107 Accordingly, since it is only a temporary step, the subsequent decisions that a country may adopt should not be guessed at. Indeed, once all the

evidence of a given risk is available, a State Party may still chose to accept the risk, and proceed as planned as such a choice is ultimately a political

one, in which the values and ideology of the country at hand, will come into play. The exception to the above situation is where the agreements in

question have developed, in advance, particular approaches that must be followed (that is, there is no discretion of how to act when faced with

scientific uncertainty). This approach is most common with international fisheries agreements, where it is agreed in advance that if stocks fall

below a certain reference point, then certain actions must follow so as to either initiate stock recovery, or return to the target levels. This approach

requires precautionary or limit reference points to be defined (e.g. for spawning biomass and fishing capacity) and non-discretionary action must be

decided in advance and taken if and when these limits are reached. Since this point, the FAO and a number of other international organisations,

such as the Commission on the Conservation of Antarctic Marine Living Resources, and the International Whaling Commission. have spent a large

amount of effort developing such reference points for various stocks, from which management decisions can be directed in times of uncertainty.

Commission Of The European Communities. Communication from the Commission on the precautionary principle. COM(2000) 1 final. Pages 3

and 15. Bodansky, D. (2004). ‘Deconstructing the Precautionary Principle’. In Caron, D. (ed). Bringing New Law to the Ocean Waters. (NIjhoff,

the Netherlands). 381, 384. Caddy, J. (1998). A Short Review of Precautionary Reference Points and Some Proposals for Their Use in Data Poor

Situations. (FAO, Rome. Fisheries Technical Paper No. 379). Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and

Natural Resource Management (IUCN, Gland). 21. Marr, S. (2003). The Precautionary Principle in the Law of the Sea. (Nijhoff, Netherlands). 26-

27. O’Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London). 17-18.

108 Annex III. Section 8. (f)

developed rules in this area, over exactly what was a ‘reasonable time’ and how a Party should act in the interim.109 Exactly what is a reasonable time will need to be determined on a case-by-case basis, with a strong underpinning of good faith efforts on the part of those required to resolve the scientific uncertainties. However, irrespective of the time question, the primary point remains, that the first thing the precautionary principle should trigger, is enhanced scientific evaluations.110 8. Five Final Caveats. Despite being only of a relatively weak and temporary nature, where action is deemed necessary and the precautionary principle is triggered, its application must be consistent with five considerations.111 First, the costs and benefits (in terms of both economic, and non-economic considerations), of applying a precautionary approach need to be weighed. This principle, in this context, cannot be under-stated.112 Second, any application should seek to consider who bears the costs or gains the benefits, so that equity, and the ideal of common but differentiated responsibilities, may be considered.113 Third, the possibility of alternative methods or processes which would produce the same outcome, without the impact need to be examined.114 Fourth, the

109Appellate Body Report, Japan--Measures Affecting Agricultural Products, WT/DS76/AB/R. Thus, a A Member may provisionally adopt an

SPS measure if this measure is (1) imposed in respect of a situation where relevant scientific information is (2) insufficient but the position is

nevertheless adopted, ‘on the basis of available pertinent information.’ Such a provisional measure may not be maintained unless the Member

which adopted the measure (3) seeks to obtain the additional information necessary for a more objective risk assessment; and (4) reviews the …

measure accordingly within a reasonable period of time. Whenever one of these four requirements is not met, the measure at issue is inconsistent

with Art 5.7. As to what constitutes a ‘reasonable period of time’ to review the measure, the Appellate Body suggested that this has to be

established on a case-by-case basis and depended on the specific circumstances of each case, including the difficulty of obtaining the additional

information necessary for the review and the characteristics of the provisional SPS measure. Japan's varietal testing requirement could not be

defended under Article 5.7 of the SPS Agreement because Japan had not sought to obtain the additional information necessary for a more objective

risk assessment and had not reviewed its testing requirement within a reasonable period of time as required by Article 5.7.


16.

111 The Precautionary Principle Project. (2005). Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural

Resource Management. (IUCN, Geneva). Principle 2.

112 Sunstein, C. (2002). Risk and Reason: Safety, Law and the Environment. (Cambridge University Press, Cambridge). 291-295. National

Research Council. (1996). Understanding Risk: Informing Decisions in a Democratic Society. (National Academies Press, Washington). 5.

Commission Of The European Communities. Communication From The Commission on the precautionary principle. COM(2000) 1 final. Pages 3-

4, 19. Harremoes, P. (ed). The Precautionary Principle in the 20th Century. (Earthscan, London, 2002). 196-200.

113 Whilst the search for what is ‘equity’ is a topic without end, in international environmental law, explicit assumptions are that the special needs

of developing countries, and least developed countries in particular, should be taken into consideration. In addition, as sustainable development

retains a strong element of ‘development’ it is important that attempts are made to mitigate poverty, and that those who bear the costs should not do

so in a disproportionate manner, (unless they created the problem at hand), and that the costs should be borne more by those who can afford to

shoulder them, than those who are not so well equipped. Otherwise, existing distributional inequities may be accelerated. Precautionary Principle

Project. (2005). Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management. (IUCN,

Geneva). Principle 11. Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and Natural Resource Management (IUCN,

Gland). 28-29. O’Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London). 17-18. Trouwborst, A. (2002). The Evolution and

Status of the Precautionary Principle in International Law. (Kluwer, Netherlands). 286.

114 O’Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London). 25-26. The Precautionary Principle Project. (2005).

Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management. (IUCN, Geneva). Principle

7.

response needs to be proportionate to the threat.115 Thus, in some instances it may be more appropriate to live with a reduced risk, rather than seeking a complete prohibition and zero risk, as zero risk may not be practical or desirable. This is especially so when dealing with risks which may not be serious or irreversible.116 Finally, the precautionary principle should be consistent with other comparable policy responses (taken in equivalent areas in which all scientific data are available). Comparable situations should not be treated differently. Therefore, it should be applied in a transparent, non-arbitrary manner, without discrimination.117 9. Applying the Precautionary Principle to Noise Pollution in the Ocean. A. Triggering the Principle: The Standard of Scientific Proof, and the Level of Risk. Noise pollution has become a common topic in both popular and scientific literature.118 It has also received consideration at meetings of the International Maritime Organisation,119 the Antarctic Treaty Consultative Meetings,120 and the United Nations Open Ended Informal Consultative Process on Oceans and the Law of the Sea.121 The topic has also received substantive attention by the Scientific

115 Trouwborst, A. (2002). The Evolution and Status of the Precautionary Principle in International Law. (Kluwer, Netherlands). 15. The

Precautionary Principle Project. (2005). Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource

Management. (IUCN, Geneva). Principle 10.

116 Commission Of The European Communities. Communication From The Commission on the precautionary principle. COM(2000) 1 final.

Pages 3-4, 17. Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and Natural Resource Management (IUCN, Gland).

30-31, 36.


3-4, 18.

118 Hecht, J. (2005). ‘Quest for Oil Could Injure Marine Life’. New Scientist. Aug 20. pp.14. Anon. (2004). ‘Boats Drown Out Orcas Cries.’ New

Scientist. May 1. pp.19. Edwards, R. (2003). ‘Sonar Kills Whales.’ New Scientist. Oct 11. pp.10. Anon. (2003). ‘Sonar.’ Sci. Am. Dec. 21. pp. 14.

Jones, N. (2003). ‘Is Undersea Noise Harming Whales ?’ New Scientist. Feb 22. pp.8. Doleman, S. (2002). ‘Noise Sources in the Cetacean

Environment.’ SC/54/E7 (unpublished report to the Scientific Committee of the IWC, 2002). Anon. (2002). ‘Not So Pacific Ocean.’ New Scientist.

March 30. pp.23. Hecht, J. (2001). ‘Navy Accepts Blame For Whale Deaths.’ New Scientist. Jan 12. pp.15. Marks, P. (2000). ‘Cracking Up: Is the

Din in the Arctic a Headache for Beluga Whales ?’ New Scientist. September 30. pp.12. Hrynyshyn, J. (2001). ‘Going Round the Bend.’ New

Scientist. Dec pp.15. pp.17. Holmes, B. (1997). ‘Noises Off.’ New Scientist. March 22. pp.24-27. Anon. (2005). ‘Sonar Lawsuit’. New Scientist.

Oct 29. pp.4.

119 In particular, the IMO’s Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas, has

identified shipping noise as a pollutant that can adversely affect the marine environment and living resources of the sea. See IMO General

Assembly. 17th Session (1997). A 17/Res.720. Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea

Areas. 8.

120 In 2003, Spain placed the issue of noise pollution and its effect upon marine mammals, on the table at the XXVI ATCM meeting. The issue

forwarded to SCAR, the regime’s scientific body, for examination. See Final Report of the XXVI ATCM (Madrid, 2003). 20.

121 At the Sixth meeting of UNICOPOLOS a group of NGOs drew attention to anthropogenic underwater noise as a largely unregulated form of

pollution, and suggested using the Convention as a legal basis for action to regulate this type of pollution, organizing a multinational task force to

develop international agreements to regulate noise levels, and applying the precautionary principle to significantly reduce, mitigate or cease

activities resulting in the production of intense underwater noise until effective guidelines were developed. See Report of the UNICPOLOS at its

Sixth Meeting. A/59/122. (2005, July 7). Paragraph 45.

Committee of the International Whaling Commission (IWC)122 and the Plenary to the IWC, from which the Parties have directly issued recommendations to control, inter alia, noise pollution around the critical habitats of some endangered whale species.123 Similar recommendations have been made by the Parties to the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS)124 and Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS).125 From the above Commissions, reports and other international bodies, two points may be taken. First, the problem has already received substantive international attention (and is thus not without serious discussion) and in some instances, the problem may represent a serious threat. The question of whom should bear the burden of proof, is a hard question to answer. However, taking the guidance from the International Court of Justice on this matter, where some groups may already have this information, such as possibly with the military and naval sonar, the burden should rest with them. Despite the rapidly growing national, regional and international interest in oceanic noise pollution, there are a large number of scientific uncertainties with regard to the impacts of oceanic noise pollution upon key marine species, which need to be addressed before internationally comprehensive (as opposed to precautionary) policies can be implemented. Generic research gaps were identified by the United States Commission on Ocean Policy, with its Ocean Blueprint for the 21st Century.126 Particular research gaps have also been identified by the ICES,127 the Scientific Committee of the IWC,128 the Parties to ACCOBAMS;129 and the Parties to

122 It was not until 2004 that a mini symposium was held on the problem of noise pollution. A dedicated workshop on the overall topic was

scheduled for 2006. Scientific Committee Report (2004) IWC/56/Rep 1. 42-45. For other discussions of this topic, see Report of the Scientific

Committee. IWC/57/Rep 1. 44-45.IWC. 54th Report. (2002). 9 Also, Report of the Scientific Committee (2003) IWC/55/Rep 1. 39.

123 Resolution 2004-1. Resolution on the Western North Pacific Gray Whale. IWC 56th Report 2005). 66. Resolution 2005-3. Resolution on the

Western North Pacific Gray Whale. IWC/57/25. See also Graham-Rowe, D. (2005). ‘Oil Plans Threaten Whales’s Existence.’ New Scientist. Feb

16. pp.14.Gordon, D. (2002). ‘Suckered At Sakhalin.’ Ecologist. 32(1): 32-35. Weller, D. (2002). ‘Influence of Seismic Surveys on Western Gray

Whales off Sakhalin Island, Russia.’ SC/54/BRG14. Report of the Scientific Committee (2005). IWC/55/Rep 1. 29 . The IUCN report is discussed

in detail in Report on Secretariat Activities With Respect to Western North Pacific Gray Whales. See document IWC/5710. (2005) 1, 4-6.

124 In particular, the Parties urged Parties and non Parties to take a special care and, if appropriate, to avoid any use of man-made noise in habitat

of vulnerable species and in areas where marine mammals or endangered species may be concentrated’. See Resolution 2.16. Assessment And

Impact Assessment Of Man-Made Noise. (2004) Report of the Second Meeting of the Parties to ACCOBAMS. (UNEP/CMS).

125 Resolution No. 5. Effects of Noise and of Vessels. Fourth Meeting of the Parties to the ASCOBANs Convention. (Esbjerg, 2003[).

126 United States Commission on Ocean Policy. (2005). Ocean Blueprint for the 21st Century (National Technical Information Service,

Washington). 315-316.

127 The ICES identified four future investigations and research for marine mammals. 1. There is insufficient knowledge in European waters of the

location and habitats of beaked whales. More reliable information on this topic would enable those wishing to use high intensity sound to avoid

those areas. A survey of all shelf-break and adjacent waters of Europe is required, as is the collation of all current records. Habitat modelling may

also improve predictability of beaked whale distribution and help identify critical habitat. 2. Techniques to detect beaked whales more reliably

need to be developed with acoustic monitoring, and possibly high-resolution satellite surveillance being promising options for the future. 3.

Increased research into the sound transmission properties in the waters near the shelf break may aid in choosing areas to avoid the use of high-

intensity sonar. 4. Further research is needed on the apparently non-auditory responses of deep-diving marine mammals to low- and mid-frequency

sonars. This could be aimed particularly at trying to understand the sphere of influence of sonar noise on cetaceans. Understanding the mechanisms

behind the apparent formation of bubbles in body tissue might help in understanding the causes of death of beaked whales. See ICES Advisory

Committee on Ecosystems, n. 1 above, at 47-49.

128 The SWG made a number of research recommendations with respect to beaked whales and the use of military sonar. These were,

recommendations concerning: (1) a full review of typical and atypical strandings,16 including beaked whales and other species that stranded at the

same time; (2) a full analysis of stranding data relative to military activities; (3) thorough, standardised post mortems of entire animals at mass

ASCOBANs.130 The 2000,131 2003132 and 2005133 (American) National Research Committee (NRC) Reports also all identified research gaps and needs in their respective areas. The overall difficulty is that behaviour of sound in the marine environment is complex. This is not just so with natural ecosystems, but also the technologies, such as sonar, which are having an impact upon key species within the marine environment.134 135 This is particularly so with some technologies, such as military sonar, which may have a much greater impact than other technologies.136137 Moreover, whilst a number of individual scientists138 and some international scientific bodies recognise such technologies as a clear problem, such as those of the Scientific Committee of the International Whaling Commission,139 and arguably the Scientific Body of ACCOBAMs,140 other bodies, such as ICES and the NRC are not

strandings; (4) standardised responses and protocols for documenting and understanding mass stranding events; (5) An investigation of the

correlation of natural sounds (e.g. earthquakes, typhoons) with the mass strandings of beaked whales; (6) surveys for Cuvier’s beaked whales off

the Pacific coast of Japan where these whales were hunted and have mass stranded. See the Report of the Scientific Committee of the International

Whaling Commission, n. 7 above, Section 12.2.5.

129 The Parties identified a number of research topics in need of investigation. In particular; A collaborative and co-ordinated temporal and

geographic mapping of local ambient noise (both of anthropogenic and biological origin); the compilation of a reference signature database, to be

made publicly available, to assist in identifying the source of potentially damaging sounds; and an assessment of the potential acoustic risk for

individual target species in consideration of their acoustic capabilities and characteristics. Resolution 2.16. Assessment And Impact Assessment Of

Man-Made Noise. Supra note 14..

130 See Section 3 of Resolution No. 5. Effects of Noise and of Vessels. Proceedings of the Fourth Meeting of the Parties to the ASCOBANs

Convention. (Esbjerg, 2003) It is 2003. . In particular, the ASCOBANs Parties were requested to, conduct further research into the effects on

small cetaceans of: (a) vessels, particularly high speed ferries; (b) acoustic harrassment devices, such as those used in fish farms and elsewhere; (c)

offshore extractive and other industrial activities; (d) other acoustic disturbances. This should include research on physical and behavioural effects,

and be at the individual and population levels. (4) conduct research and develop appropriate management measures and guidelines to minimise any

adverse effects on small cetaceans of the above factors.

131 National Research Council. (2000). Supra note 19. 5-7.

132 The 2003 report went on to list 16 areas where research needs required addressing. See National Research Council. (2003). Potential Impacts.

Supra note 4. 7-11.

133 The 2005 Report added the need for further research in its area (biologically significant impacts), data coordination, standardization, analysis,

and focus. National Research Council. (2005). Supra note 21. 4-11.

134 ICES Advisory Committee on Ecosystems (2005). Supra note 1. Pp.2.

135 ICES Advisory Committee on Ecosystems (2005). Supra note 1. Pp.10-12.


137 Decompression sickness is the result of the supersaturation of body tissue with nitrogen and the subsequent release of bubbles of nitrogen gas.

In human divers, decompression sickness is typically caused by rapid decompression following diving while using compressed air or repetitive,

breath-hold dives. Unlike humans, the lungs of marine mammals collapse during a dive, limiting the nitrogen they carry to that which is absorbed

into the blood stream within 60 m to 100 m of the surface. At greater depths, nitrogen is sequestered in non-exchanging airways. The amount of gas

dissolved in specific tissues depends on dive depth, dive duration, descent and ascent rates, lipid content of the tissue, and surface intervals between

successive dives. Although a number of anatomical, physiological, and behavioural adaptations that presumably guard against nitrogen bubble

formation in marine mammals have been proposed, it is possible that the gas emboli and associated lesions found in cetaceans stranded in proximity

to military sonar could be caused by disruption of these evolutionary adaptations to deep diving. Anatomical and physiological adaptations to

diving are unlikely to alter in the short course of acoustic exposure, but behavioural changes in response to sonar might. If beaked whales respond

similarly they could experience excessive nitrogen tissue supersaturation driving potentially damaging bubble formation in tissues via a similar

mechanism to the human diver that incurs DCS due to too rapid an ascent. See Jepson, P. (2003). ‘Gas Bubble Lesions in Stranded Cetaceans’.

Nature. (425). 575-576.

138 See Fernandez, A. et al. (2005). ‘Gas and Fat Embolic Syndrome: Involving a Mass Stranding of Beaked Whales Exposed to Anthropogenic

Sonar Signals’. Vetinary Pathology. 42 (4) 446-457.

139 Report of the Scientific Committee of the International Whaling Commission (2004). Section 12.2.5.

140 Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. Supra note 14.

wholly convinced that there is a clear connection between whale strandings and military sonar.141 142143 B. Applying the Principle. (i). Understanding the Difference Between Short Term and Long Term Measures. Long term mitigation options for noise pollution in the ocean may include such measures as, inter alia, international controls on the noise levels permissible from vessels which travel the high seas, restricted forms of technology which make various types of noise, and complete noise pollution prohibition zones (that is, certain levels and types of noise pollution is clearly factored into prohibitions within marine protected areas).144 This is not to suggest that work may not proceed on possible long term options, such as in this instance, alternate technologies, but such work should be encouraged,145 but not mandatory, until a greater degree of scientific consensus is present. In keeping with this approach, since the precautionary principle is only concerned with temporary options until further scientific evidence is collated, then only relatively transitory options operate. (ii). The First Step. In this context, the first step to be taken in implementing the precautionary principle, is the instigation of in-depth scientific investigations, which, through, inter alia, enhanced monitoring (of the noise sources, and their impacts, short term and long term, individual and cumulative) and investigation may provide more concrete answers.146 The need for an advanced, comprehensive scientific study into the potential problem of noise pollution and the ocean environment in general, and marine mammals in particular, has been reiterated by the NRC, the ICES, and the Scientific Committee of the IWC. For example, the ICES was clear that due to the fact that ‘as this is an international problem, there may be benefits to an international research effort’.147 Likewise, the Scientific Committee of the IWC has recommended, inter alia, ‘the integration and coordination of international research projects to study and describe acoustic ecologies’ and the establishment of working groups to study specific scientific questions in this area.148 The NRC made similar calls in 2000149 and in 2003.150 Similar calls have been made by the European Parliament151 and the 141 ICES Advisory Committee on Ecosystems (2005). Supra note 1. Pp.2, 3, 13-15, 39.

142 National Research Council. (2000). Supra note 19. 3.

143 National Research Council. (2000). Supra note 19. 5-7.


Paragraph 5.

145 Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. 2004 Report of the Second Meeting of the Parties to ACCOBAMS.

(UNEP/CMS). European Parliament Resolution on the Environmental Effects of High-Intensity Active Naval Sonars. B6-0089/2004. Paragraph 7. IUCN. Third Conservation Congress (2004, Thailand). RESWCC3.068 Undersea noise pollution. Congress reference: CGR3.RES053.Rev.1.

Paragraph 5.

146 See Gillespie, A. (forthcoming). Searching For Reliable Scientific Foundations …………..



149 National Research Council. (2000). Supra note 19.. 4, 7..

150 National Research Council. (2003). Potential Impacts. Supra note 4. 7, 11..

General Assembly of the United Nations.152 In addition, the ACCOBAMs Parties have urged the ‘facilitat[ion] of national and international researches’ on a number of noise related scientific problems.153 Finally, the United States, although abstaining from the 2004 IUCN resolution on noise pollution, has ‘encouraged an international approach to advance scientific understanding of this issue and to promote science-based means of addressing adverse effects’. 154 (iii). The Yardstick for Considering Temporary Measures.

Applying a precautionary approach is attached to a number of yardsticks. The first yardstick will involve the seriousness of the potential risk. In the context of marine noise, the seriousness will be influenced of which species are involved, their current population status of the species and the critical nature of the area (such as a feeding, or nurturing habitats, marine protected areas or perhaps a key migratory route) utilized. Where evidence is available that the impacts of a particular type of noise pollution are particularly severe (both in terms of the impacts upon the species, or perhaps impact upon related activities to it, such as local whaling watching industries), then this too will come into play. Thus, military and seismic surveys of a relatively short duration in time, but of a remarkably high intensity, will, prima facie, require stricter precautionary measures than noise sources from shipping which have built up on a sustained basis over the previous few decades. However, this presumption may be reversed by the seriousness of the risk to the species in question.

(iv). Tentative Measures, of Minimal Cost with Potentially High Benefits. Basic tentative measures which are suitable to apply under a precautionary approach in this area are that, all areas of potentially substantively detrimental noise impact, should utilize observers who seek to visually detect and identify marine species which may be the victims of potential impact. Where the risk is highest, a greater concentration of observers should be utilized. Moreover, observation should be supplemented by electronic means of monitoring used to detect marine mammals which could be impacted upon. In such areas, where noise may have significant consequences on the animals inhabiting the marine environment the noise source should be stopped, or a moratorium on such activities should be implemented.155 This is especially so in key areas (of which some have already been identified by the Scientific Committee of the

151 The European Parliament called upon the European Commission to conduct a study of the potential impact on the marine

environment of the deployment of high-intensity active naval sonars and to provide an assessment, on the basis of information

from the Member States, of the impact of current practices in European waters. European Parliament Supra note 16. Paragraph

5.

152 The UNGA called for, inter alia, ‘further studied and consideration of the impacts of ocean noise on marine living

resources’. UNGA. A/RES/60/30. Oceans and the Law of the Sea. Paragraph .84.

153 Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. Supra note 14..

154 IUCN. Supra note 17. Statement, attached to the end of the resolution.

155 Report of the Scientific Committee of the International Whaling Commission (2004). Section 12.2.5. European Parliament Resolution on the

Environmental Effects of High-Intensity Active Naval Sonars. B6-0089/2004. Paragraph 1.

IWC)156 where species subject to potential serious impacts, the tests should not be conducted157 (as is the case with various forms of military sonar).158 Where such prohibitions or moratoriums, are currently not possible, precautionary measures to avoid potential impact should be codified in industry specific guidelines, so that responses are not ad-hoc.159 Such guidelines should include, inter alia, only using noise polluting sources whilst the species are not in the area (such as by avoiding key migratory species or periods where local breeding or calf-rearing grounds are used). Additional precautionary measures may include warning signals (whereby the noise source slowly increases in volume, thereby driving away species before the worst potential impacts of the problem). 9. Conclusion. Most activities in life have potential risks attached to them. Some are big risks, and some area small. The question for the individual, is how to manage this risk. This question is also pertinent for decision makers trying to deal with risks which may have impacts beyond those facing isolated individuals. This problem is particularly pertinent with regards to potential environmental threats. Moreover, unfortunately this need to manage risks has become heightened, due to the fact that scientific uncertainty, of either a epistemic, or ontological variety is often underlying many emerging scientific investigations, and ‘surprises’, well out of the range of what may be expected, may occur. There are numerous examples of this problem, which range from keystone species to the ozone layer. Against such backgrounds of scientific uncertainty and the need to manage risks, the precautionary principle has developed. This principle has grown exponentially, in recent years, being incorporated into both laws and policies in many domestic, regional and international levels. The principle is settled in international trade law, and since the 1992 Earth Summit, has become specifically entrenched in a large number of international environmental conventions. Due to such developments, it has been argued, at the ICJ, the UNCLOS Tribunal, and World Trade Organisation that the principle exists as customary international law. Despite these developments, it has been suggested that the precautionary principle has not yet attained the status of customary international law. This suggestion is because it is not yet in all areas of international environmental law, or else where it is noted, its form is embryonic, if not contradictory (between regimes). In addition, none of the three adjudicative bodies noted above, despite having heard the arguments on the principle, have explicitly adopted it in their respective judgements. Whilst examining the two sides in this debate, it is this debate, it is the opinion of the author that, on balance, the evidence would suggest that the principle has attained a



Paragraph 5.

158 For a detailed analysis of the methods used by a number of navies in this area, see the ICES Advisory Committee on Ecosystems (2005). Report of the

Ad-hoc Group on the Impacts of Sonar on Cetaceans and Fish (AGISC). ICES CM 2005/ACE:06 (2nd Edn). Section 5.6.

159 Resolution No. 5. Effects of Noise and of Vessels. Fourth Meeting of the Parties to the ASCOBANs Convention. (Esbjerg, 2003).

soft form of customary status. This conclusion can be reached by examining three steps. The first step is the case law, which whilst not explicitly adopting the principle, did not dismiss it either. Moreover, a number of judges within the respective cases did explicitly recognise it. The second step relates to the relative coherence of the principle, and the realisation that in practice, it has moved predominantly towards a ‘weak version’ and there is not large divergence with regard to its underlying core areas. Thus, the threats must be serious, the standard of proof must be substantive, and the burden of proof is not hoisted on any particular Party, unless that Party may be in possession of the evidence which reduces the uncertainty. The third step is based upon a clear recognition that the principle is only a temporary step, which may be eclipsed when greater scientific evidence is ascertainable. Thus, it is transitory and must be dealt with within a reasonable period of time. Finally, if triggered its application must be must be consistent with five subsidiary considerations. The foremost of these, is that the the costs and benefits of applying a precautionary approach need to be carefully weighed. With regard to the case study at hand of noise pollution in the ocean, the precautionary principle would require the follow steps. First, it is triggered by the identification of a concern, which in certain instances, may be of a substantive concern. However, despite this general recognition, there is large amount of scientific uncertainty in this area. Thus, in this context the foremost step taken under the precautionary principle should be the formation of an internationally based scientific investigation, from which reliable and non-partisan evidence can be adduced, and robust policies can be built. Until that evidence is concluded, a precautionary approach in this area would necessitate a series of tentative steps. Each of these steps would be linked to the the seriousness of the potential risk. In the context of marine noise, the seriousness will be influenced of which species are involved, their current population status of the species and the critical nature of the areas utilized. Basic tentative measures which are suitable to apply under a precautionary approach in this area are that, all areas of potentially substantively detrimental noise impact, should utilize observers who seek to visually detect and identify marine species which may be the victims of potential impact. Where the risk is highest, a greater concentration of observers should be utilized. Moreover, observation should be supplemented by electronic means of monitoring used to detect marine mammals which could be impacted upon. In areas where noise may have significant detrimental impacts upon the animals inhabiting the marine environment the noise source should be stopped, or a moratorium on such activities should be implemented. Where such prohibitions or moratoriums, are currently not possible, precautionary measures to avoid potential impact should be codified in industry specific guidelines, so that responses are not ad-hoc. Such guidelines should include, inter alia, only using noise polluting sources whilst the species are not in the area. Additional precautionary measures may include approaches such as warning signals, where the noise level slowly increases, allowing animals to leave the area in good time. Although neither of these of these measures may be suitable to address long term needs in this area, failure to implement even these basic considerations, would not be consistent with the obligation imposed by the precautionary principle.

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