What need for the precautionary principle?

In line with the principle of prudence and from April 15 to 21, 2010, aircrafts of 313 European airports were grounded, 102 000 flights were canceled and millions of passengers were stranded around the world, which has generated losses of 1.7 billion (USD) for the airline companies.

By seeking shield from the precautionary principle, the authorities have in fact chosen to be on the safe side rather than being charged with criminal carelessness. They have, nonetheless, been criticized subsequently for excessive caution.

Precautionary principle: Background

The precautionary principle was born in the late sixties thanks, among other things, to the German philosopher H. Jonas. Public authorities, therefore, adopted the "Vorsorgeprinzip", which allowed to take all necessary and reasonable measures to guard against potential risks, without prior scientific evidence.

In 1984 and 1987, some international documents with uneven legal value referred to this principle in Northern Europe. It is the "Earth Summit" of June 1992 which would give it an international dimension. The community law introduced it in the European Union at the signing of the Maastricht Treaty in February 1992.

This principle has then moved from a philosophical precept to a legal concept.

The European Union considers the precautionary principle as "a general customary rule of international law" or at least "a general principle of law." It is not necessary that the entire scientific community be in agreement about the possibilities of damage occurrence or about its scale, nor is it asked from other States or WTO partners to draw the same conclusions.

The United States does not give precautionary principle the status of customary international law but regards it as an "approach". Canada concurs with the United States admitting nonetheless that the "concept" or "precautionary approach" is "an emerging principle of law" that is likely to become one of the "general fundamentals of law recognized by civilized nations."

Prudence, prevention and precaution principle

Mark Hunyadi, a professor at Laval University, estimates that three concepts must be distinguished:

Prudence: it covers the proven risks. These risks are established and we know how to estimate their frequency of occurrence. This is the case of exposure to asbestos.

Prevention: it concerns proven risks. These risks are established but we do not known how to estimate its frequency of occurrence. Doubt no longer stands on the risk but on its occurrence. That is the case of nuclear risks.

Precaution: it involves the likely risks whose absolute existence has not yet been established by science. We assume the presence of these risks through observations. This is the case of nanotechnology, GMOs, ...

The extension of the precautionary principle

In order to provide ever-increasing protection for consumers and following many cases, the precautionary principle has been shifted towards the risks to health and nutrition: GMOs, bovine spongiform encephalitis, contaminated blood are just a few examples.

International law also provides for the implementation of sanitary and phytosanitary measures of precaution in cases where scientific evidence is indisputable.

The recent restrictions on flights over Europe following the Icelandic volcano Eyjafjöll or the displacements from home due to storm Xynthia reinforce the idea that the precautionary principle applies to ever-broader areas.

The implementation of the precautionary principle

The use of the precautionary principle should not emanate from arbitrary decisions but must meet specific criteria:

• It should be envisaged only in the event of a risk, that is, when a significant level of severity has been reached.
• Its implementation must be preceded by an objective assessment of the risk. This study shall, for each step, define the level of scientific uncertainty.
• The scientific results should be made public and all stakeholders should have the opportunity to conduct further studies in full transparency, then consider all management options.
• An assessment of the risk and repercussions over the decision of not to act must be carried out.

Principles of good risk management also apply:

• the non-discrimination in implementing the measures
• the existence of proportionality between the measures taken and the protection expected
• the existence of coherence between the measures taken and similar cases having been reported
• a revision of the arrangements made in the case of scientific evolution. The precautionary principle can, therefore, be only temporary
• an analysis of benefits and costs in order to achieve a reduction of the risk to an acceptable level for all parties

Being able to size up the threat makes it possible to make optimal use of the principle of prudence, prevention or precaution.

The debate on the precautionary principle

The majority of the subjects concerned by the precautionary principle are international. The disagreements it triggers show that each nation has a different risk apprehension because exposures, and financial consequences vary from one country to another.

The formulation of the precautionary principle raises a number of questions:

• on the acceptability of the risk: it is not a choice between an action that involves risk and a prudent immobility but between acceptance of an action or inaction
• on the assessment of the risk: the precautionary principle being characterized by scientific uncertainty, it is necessary to determine criteria for the risk appraisal
• on the persons and institutions concerned: shall the principle apply to all public and private players?
• on the scope of the principle: should it extend to all areas of economic and social life?
• on the duration of the use of the principle : are the arrangements made temporary or permanent?

Opposition to the precautionary principle

The precautionary principle has a number of negative repercussions:

• it prevents innovation and distorts competition. Advocates of the abolition of this principle remind that many inventions would not have been made if that principle had then existed (inventions of antibiotics, vaccines, ...)
• it disrupts international trade
• it allows politicians to escape their responsibilities and grants them discretionary powers
• it makes decisions arbitrary
• it may restrict the freedom of citizens, consumers or corporates

Legally, the precautionary principle comes into conflict with the majority of European rights systematically reversing the burden of proof: it is up to the developer of a project to prove the safety of its product. So there is ignorance of the presumption of innocence. Otherwise, the authorities have the right to stop production even in the absence of evidence.

Insurance and the precautionary principle

Before granting their guarantees, the insurers, in the name of the precautionary principle are entitled to demand the execution of works or the presence of equipments such as:

• smoke detectors and alarms,
• brush clearing,
• combating the lack of maintenance of equipment,
• secure doors and windows,
• alarms and surveillance systems,
• safes, ...

Failure to comply with these requirements may increase the price of coverage, or lead the insurer to refuse the risk.

Some clauses exclude coverage of risks whose impact on the human activity is not identified, but where glimpses of presumptions exist:

• electromagnetic fields,
• the nanotechnologies,
• genetic engineering, ...

Insurance being based on statistical principles, it therefore appears that all causes, not likely to be mathematically evaluated, tend to be excluded by the insurer.