The Precautionary Principle and the Need for Diversity

by Roger Alford

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.

http://opiniojuris.org/2006/11/20/the-precautionary-principle-and-the-need-for-diversity/

6 Responses

  1. Didn’t you mean to say ‘Why shouldn’t the clear and present danger of global warming deserve a stronger version of the precautionary principle than the uncertain and distant danger of WMD’s from Ahmadinejad’s Iran or Hussen’s Iraq?’

  2. typo corrected: Hussein’s

  3. But doesn’t this argument beg the question of whether there already is diversity of view about the precautionary principle and the application of the precautionary principle in discussions of international law. The tension is always about when such a principle is crystallized in customary international law – the persistent objector – etc etc. and the contours of such a principle.

    Also, arguing the precautionary principle given the lack of Hussein WMD’s or the apparent lack of WMD’s in Iran (according to a report from the CIA’s analysis soon to come out in a Seymour Hersh article in the New Yorker (reported in Agence France Presse) is a veiled way of coming back to the preemptive war argument again isn’t it?

    As to customary international law being the weak heel of international law and the game of international law professors, please note Article 38 of the ICJ saying that the publicists role provides evidence of rules not the rules.

    Finally, I have not found internatioanl law professors to be a hotbed of leftist radicals. On the contrary I have found them conservative to extremely conservative for the most part. Rules that I have described are the types of rules of international law that are the ordinary currency of international commercial arbitration – a more conservative group of scholars you would not find.

    Chertoff needs to get real.

    Best,

    Ben

  4. Ben,

    No it doesn’t follow that applying the precautionary principle to WMD’s justifies preemptive self-defense. It might lead to various remedial responses, including Security Council action. The point is that the threat of nuclear war is a real and genuine threat in the hands of someone like Saddam Hussein or Mahmoud Ahmadinejad, and perfect knowledge about their nuclear capabilities should not preclude some sort of collective response given the nature of the threat. That would be the argument at least if one were to apply the precautionary principle to that context. (I am not advocating that position by the way, simply arguing for the logic of diverse perspectives on something like extending the precautionary principle to different contexts).

    Roger Alford

  5. Roger,

    I believe that the focus of the debate should be placed on the fundamental difference between a civil law administrative principles-based presumption of harm which Europe’s version of the Precautionary Principle would engender, versus, a common law rules and context-based Precautionary Approach requiring

    ‘substantial’, ‘unreasonable’, ‘clear and convincing’, or ‘more probable than not’ (‘preponderance of the evidence’), proof of harm standards of evidence. Until such a legal threshold has been passed, the burdens of persuasion and production would not shift from the government to industry.

    Mr. Chertoff is correct in concluding that Europe, through the U.N., IS endeavoring to replace the latter with the former; is this not true? However, the focus of Europe’s efforts is much broader than information and terrorism concerns.

    The European Union seeks to rely on the Wingspread version of the Precautionary Principle as a tool to evaluate ALL potential (knowable and unknowable) public environmental and health hazards (as opposed to risks) and this would adversely affect ALL industry and services sectors throughout the world, particularly American and developing country-based companies. One need only review how poorly European companies have fared under this evolving regional system of over-regulation to see why European industry has intensively lobbied the EU Commission and Parliament to ensure that these same high cost, non-science-based regulations and technical standards are exported throughout the world. This is what the UN environmental treaties refer to as ‘burden sharing’. Europe over-regulates and other UN members and their industries must bear the cost of such over-regulation along with it.

    As you are well aware, substantial legal and economic costs would be incurred if both treaty and customary international law required, as Europe would like, for the U.S. to change from a risk-based assessment and management legal system to one based on hazard-based assessment and management. I have researched and written a great deal about this, and my work has been corroborated by experts within both the US and Europe. The Wingspread version of the Precautionary Principle is a tool of ‘hazard’ as opposed ‘risk’ analysis and would give less emphasis to the ‘knowables’ in science than to the ‘unknowables’.

    Consequently, since scientific method endeavors to understand and assess the unknowables in life and beyond, the Wingspread version of the Precautionary Principle, with its emphasis on severely restricting and/or banning substances, products, processes and activities that may have uncertain potential future impacts, would also severely curtail scientific discovery and commercial innovation on an international scale.

    Its requirement that industry currently develop substitutes to replace hypothetical hazards that have not actually been proven to be genuine, actually triggers a risk-risk scenario – i.e., it produces new unknown current risks that may be greater than the future hazards feared.

    For example, there still are no viable substitutes to lead solder in electrical and electronic equipment – all substitutes thus far would present a greater risk of harm (fire, malfunction) to product operators/users than the risk of solder leaching into underground aquifers). The banning of e-waste to developing countries deprives industries within such countries of the volume of inputs to justify the investment in new and efficient waste disposal technologies that would employ millions. Biotech food and seed – propaganda warning of potential health hazards beyond the known issue of allergenicity and the environmental propaganda concerning fear of crosspollination has caused several sub-Saharan countries to refuse US biotech food/seed aid, and thus, many Africans have died of starvation. DDT/POPs-focused EU regulations, the UN Roll-Back Malaria program and USAID policy, until recently, prohibited or otherwise discouraged the export of DDT to sub-Saharan African nations in the ‘malaria belt’ for ‘indoor residual spraying’ (IRS) (based on propaganda that it would be diverted to widespread agricultural use and that even IRS would cause POPs traces to appear at the North Pole). As a result, millions of Africans have died from malaria and the African nations’ economies have remained mired in poverty for lack of a healthy workforce, among other reasons. Obsession over carbon dioxide emissions – the ‘hot air’ expended to promote very expensive government regulation (cap-and-trade) of CO2 emissions without more than possible scientific proof of other than cyclical causes of global warming (i.e., that anthropogenic activity is a ‘probable’ or ‘more likely than not’ cause of global warming) will result in government policymakers focusing on the tail of the dog – windmills, solar panels, natural gas and energy conservation – instead of on the body of the dog – i.e., they will ignore the more pressing and immediate problem of securing reliable and efficient sources of energy to secure US energy independence or less dependence on volatile and politically hostile foreign energy sources. Obsession with banning through regulation the use of phthalates in toys and cosmetics without empirical proof that such substances have caused actual harm (only limited laboratory studies pointing to but not establishing carcinogenic links) will deprive society of the benefits of plasticizers in many industry products used in everyday life. Last, but not least, banning brominated flame retardants without available and viable substitutes, will raise the risk of severe injury from fire in many different consumer products that contain flame retardant chemicals as a matter of U.S. law.

    Professor Sunstein’s seminal article on the Precautionary Principle correctly points all of this out, and concludes, for these reasons, that the Wingspread Precautionary Principle preferred by social and environmental advocates and (political) risk-averse European regulators IS inherently UNworkable and actually HARMFUL TO SOCIETY.

    If anyone has any doubt about the international political impetus behind the Wingspread version of the Precautionary Principle as the leading operative mechanism underlying the EU/UN notion of ‘sustainable development’, one need only review the platform of Europe’s leading Socialist and Green Parties. Such a review would clarify for you and U.S. government policymakers the hostility that these groups have towards American capitalism and free enterprise, and the common law legal system that supports it.

    As concerns the application of the Wingspread version of the Precautionary Principle versus the Precautionary Approach to the US preemptive war against Iraq, this is an entirely different discussion. Mr. Chertoff is most assuredly aware of the risk of sliding down the slippery slope of ‘better safe than sorry’ were he and the administration to rely on the Precautionary Principle as a justification for preemptive war. In this regard, one might find it instructive to employ a Precautionary Approach to that analysis instead. Such an approach would arguably provide an empirical, context-based legal justification for the war in Afghanistan. Based on our current knowledge of the quality of the empirical evidence relied on to tie 9/11 and/or the threat of new terrorist attacks to Iraq’s former Hussein regime, it may or may not be possibe to arrive at the same conclusion with respect to the preemptive attack on Iraq. However, such an analysis would also depend on how the UN Charter’s notion of ‘armed attacks’ is construed: as either a fluid or temporal notion. For example, under what factual circumstances do a series of individual ‘armed attacks’ over time constitute a ‘low grade war’?

    It should not be doubted that Europe would like it if the US administration did rely on the Wingspread version of the Precautionary Principle as a legal justification to preemptively attack Iraq. This would clearly vindicate their reliance on that same notion to undertake preemptive regulation of all kinds of industrial and technological activities (including those pertinent to the US military). This would serve not only to undermine the US comparative advantage in international trade, but also US national security.

    Sincerely,

    Lawrence

  6. The threat of a nuclear war is a threat in the hands of anyone with nuclear weapons. If Ahmadinejad or Hussein (if they have such weapons) started a nuclear confrontation they know what would happen to their countries. They do not need a nuclear confrontation to succeed – Ahmamdinejad needs do nothing and wait. Watch us now try to engage with Iran and Syria on Iraq. Power flows towards Iran and Syria and away from us thanks to our disastrous policy of starting the war in Iraq. That is why Gemayel was so boldly assassinated – an act of power that has all the hallmarks of the political assassination to signal the resurgence of Syrian authority over the Lebanon again.

    Precautionary principle as justification for preemptive war in Iraq, I agree that it could be used as a justification for a range of remedies. My sense of the earlier comment was that was an effort now using the precautionary principle to insinuate another way of justifying the disastrous intervention in Iraq.

    As to risk and harm based approaches to the precautionary principle, thank you for your analysis. I suspect that there are areas of overlap in the results between those two fundamental approaches – though the mix of outliers would be different.

    It seems that between Greens and business in Europe there is a lively discussion between “risk” and “harm” approaches and Sunstein’s work seeks to debunk the “harm” approach in the United States. So this is the kind of lively debate about the subject matter that is already going on. Chertoff’s call to arms makes even less sense to me in this context. I am not seeing the leftists or radicals – just labels – Chertoff tilting at windmills for his Federalist audience.

    Best,

    Ben

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