The Precautionary Principle and the Need for Diversity

To further the discussion regarding Michael Chertoff’s provocative speech last week, I wanted to identify one area where a strong argument could be made for the need for greater diversity of viewpoint on developing international norms. Consider the issue of the precautionary principle. There are numerous avenues to pursue this question, and there are fundamental principles at stake about transnational government regulation. In my view, diverse perspectives on international law could greatly enrich the debate and challenge shared assumptions.

So let’s take up the merits of Chertoff’s proposal for greater intellectual diversity among international law scholars and consider the issue of the precautionary principle. As one who is not an international environmental lawyer, I have long been intrigued by the implications of the precautionary principle for international law. It appears to be a norm that has a surface appeal in embracing the maxim “better safe than sorry.” That makes sense when catastrophic harm almost certainly will follow from a failure to act. But should it apply to other contexts of risk management? Should one apply the maxim of “better safe than sorry” to always favor joint regulation over unilateral action or collective inaction?

Of course, there are mild and strong versions of the precautionary principle. As Cass Sunstein has noted in this article, a mild version rather benignly posits that “a lack of decisive evidence of harm should not be a ground for refusing to regulate.” But a strong version would maintain that “when there is a risk of significant health or environmental damage to others or to future generations, and when there is significant uncertainty as to the nature of that damage or the likelihood of the risk, then decisions should be made so as to prevent such activities from being conducted unless and until scientific evidence shows that the damage will not occur.” In essence, the strong version proposes a standard of “when in doubt, regulate.” What would the international law equivalent of a Milton Friedman say to such a proposal?

Which version of the precautionary principle should we embrace? There is no easy answer to this question. Greater diversity among international scholars could greatly enrich the debate about which version of the precautionary principle is preferred in which circumstances. Borrowing from Richard Stewart, Sunstein notes that we could embrace any number of things when we embrace the precautionary principle, including that (1) regulation should not be precluded by the absence of scientific uncertainty about activities that pose a risk of substantial harm; (2) regulation should include a margin of safety, limiting activities below the level at which adverse affects have not been found or predicted; (3) best available technology requirements should be imposed on activities that pose an uncertain potential to create substantial harm, unless those in favor of those activities can show that they present no appreciable risk; or (4) prohibitions should be imposed on activities that have an uncertain potential to impose substantial harm, unless those in favor of those activities can show that they present no appreciable risk.

What might greater diversity of viewpoint add to the discussion? Well, there are fairly obvious domestic analogies to the precautionary principle. Although imperfect, obviously an American constitutional scholar can well appreciate that strong versions of the precautionary principle would require no more than a rational basis to justify government restrictions on individual behavior. And none of these versions remotely embraces the equivalent of requiring a compelling state interest standard that would limit government action to least restrictive means.

Diversity of viewpoint also would add to the discussion about how far afield one should apply the precautionary principle. If there is doubt about the versions of the precautionary principle, there is even greater uncertainty about the application of the principle to various contexts. Should the precautionary principle apply across international law sub-disciplines? And should the same version of the precautionary principle apply to regulation of arsenic, threats to endangered species, the importation of asbestos, the risk of impending genocide, the threat of a nuclear Iran, or the specter of global warming? Why shouldn’t the clear and present danger of WMD’s from Ahmadinejad’s Iran or Hussein’s Iraq deserve a stronger version of the precautionary principle than the uncertain and distant danger of global warming?

I don’t have the answers to these questions. But diversity of viewpoint on these issues would greatly enlighten the debate. A call for ideological diversity to infuse the discussion about something as complex as the precautionary principle should be welcome among international law scholars. Even if the call comes from a senior Bush Administration official at a Federalist Society meeting.