LEGAL EFFECT OF PRINCIPLES AND THEIR

RELATIONSHIP TO RULES
 A ‘rule’ . . . ‘is essentially practical and, moreover, binding . . .
[T]here are rules of art as there are rules of government’ while
principle ‘expresses a general truth, which guides our action,
serves as a theoretical basis for the various acts of our life, and
the application of which to reality produces a given
consequence’.
Positive rules of law may be treated as the ‘practical formulation
of the principles’, and the ‘application of the principle to the
infinitely varying circumstances of practical life aims at bringing
about substantive justice in every case.
Limit the scope of application of a principle was reflected by the
UK declaration made upon signature of the 1992 Biodiversity
Convention, declaring the understanding that ‘Article 3 of the
Convention . . . sets out a guiding principle to be taken into
account in the implementation of the Convention’, implying that
no legal consequences arose outside the Convention.
 The rules of international environmental law have developed
within the context of two fundamental objectives pulling in
opposing directions: that states have sovereign rights over their
natural resources; and that states must not cause damage to the
environment.
Principle 21 of the Stockholm Declaration, which provides that:

“States have, in accordance with the Charter of the United

Nations and the principles of international law, the sovereign
right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits of
national jurisdiction”.
 PRECAUTIONARY PRINCIPLE
The preventive principle can be traced back to international
environmental treaties and other international acts since at least
the 1930s, the precautionary principle only began to appear in
international legal instruments in the mid-1980s, although prior
to then it had featured as a principle in domestic legal systems,
most notably that of West Germany.
• The precautionary principle aims to provide guidance
in the development and application of international
environmental law where there is scientific uncertainty.

• It continues to generate disagreement as to its meaning

and effect, as reflected in particular in the views of
states and international judicial practice. On the one
hand, some consider that it provides the basis for early
international legal action to address highly threatening
environmental issues such as ozone depletion and
climate change.
 PRINCIPLE 15 OF THE RIO
DECLARATION

‘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’.
Principle 15 also provides that ‘the precautionary
approach shall be widely applied by states according to
their capabilities.’
The precautionary principle (or precautionary approach,
as the US and some others prefer to call it) has been
adopted in many international environmental treaties
since 1989. Although its precise formulation is not
identical in each instrument, the language of Principle 15
of the Rio Declaration now attracts broad support.

The principle finds its roots in the more traditional

environmental agreements which call on parties to such
agreements, and the institutions they create, to act and to
adopt decisions which are based upon ‘scientific
findings’ or methods, or ‘in the light of knowledge
available at the time’.
The 1969 Intervention Convention(applied to casualties
involving pollution by oil.) was one of the earliest
treaties to recognise the limitations of the traditional
approach, concerning the environmental consequences of
a failure to act.

It allows proportionate measures to be taken to prevent,

mitigate or eliminate grave and imminent danger to
coastlines from the threat of oil pollution, taking account
of ‘the extent and probability of imminent damage if
those measures are not taken’.
Developments in the mid-1980s to address ozone depletion
reflected growing support for precautionary action. The first
treaty which refers to the term is the 1985 Vienna Convention,
which reflected the parties’ recognition of the ‘precautionary
measures’ taken at the national and international levels.

By 1987, the parties to the Montreal Protocol noted the

‘precautionary measures’ to control emission from certain
CFCs(Chlorofluorocarbons) which had already been taken at the
national and regional levels and stated their determination to
‘protect the ozone layer by taking precautionary measures to
control equitably total global emissions of substances that deplete
it’.
• The precautionary approach has been relied upon in
relation to measures to protect other environmental
media, especially the marine environment.

• The Preamble to the 1984 Ministerial Declaration of the

International Conference on the Protection of the North
Sea reflected a consciousness that states ‘must not wait
for proof of harmful effects before taking action’, since
damage to the marine environment can be irreversible
or remediable only at considerable expense and over a
long period.
• The idea that precautionary action may be justified on
economic grounds. The Ministerial Declaration of the
Second North Sea Conference (1987) accepted that ‘in
order to protect the North Sea from possibly damaging
effects of the most dangerous substances, a
precautionary approach is necessary’.

• At the Third North Sea Conference (1990), Ministers

pledged to continue to apply the precautionary
principle.
The Declaration provides that: In order to achieve sustainable
development, policies must be based on the precautionary
principle. Environmental measures must anticipate, prevent and
attack the causes of environmental degradation.

Where there are threats of serious or irreversible damage, lack of

full scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.
The 1991 Bamako Convention, (treaty of African nations
prohibiting the import into Africa of any hazardous (including
radioactive) waste which requires parties to strive to adopt and
implement:
The preventive, precautionary approach to pollution entails, inter
alia, preventing the release into the environment of substances
which may cause harm to humans or the environment without
waiting for scientific proof regarding such harm.

The parties shall cooperate with each other in taking the

appropriate measures to implement the precautionary principle of
pollution prevention through the application of clean production
methods.
The parties to the 1992 Watercourses Convention (The
Convention on the Protection and Use of
Transboundary Watercourses and International Lakes
(Water Convention) agreed to be guided by the
precautionary principle by virtue of which action to
avoid the potential transboundary impact of the release
of hazardous substances shall not be postponed on the
ground that scientific research has not fully proved a
causal link between those substances, on the one hand,
and the potential transboundary impact, on the other
hand.
United Kingdom v. EC Commission [1998] which has
ruled that, in cases relating to the effects on human
health of certain products, and where there may be a
great measure of scientific and practical uncertainty
linked to the issue under consideration, the application
of the precautionary principle is justified and
‘presupposes, firstly, an identification of potentially
negative health consequences arising, in the present
case, from a proposed fortification, and, secondly, a
comprehensive evaluation of the risk to health based
on the most recent scientific information’.
• The Court went on:
• When the insufficiency, or the inconclusiveness, or the
imprecise nature of the conclusions to be drawn from
those considerations make it impossible to determine
with certainty the risk or hazard, but the likelihood of
considerable harm still persists were the negative
eventuality to occur, the precautionary principle
would justify the taking of restrictive measures.
• Before the ICJ the principle appears to have first been raised in
New Zealand’s 1995 request concerning French nuclear testing.
• New Zealand relied extensively on the principle, which it described
as ‘a very widely accepted and operative principle of international
law’ and which shifted the burden onto France to prove that the
proposed tests would not give rise to environmental damage. Five
‘intervening’ states (Australia, Micronesia, the Marshall Islands,
Samoa and the Solomon Islands) also invoked the principle.
• France responded that the status of the principle in international law
was ‘tout `a fait incertain’, but that in any event it had been complied
with, and that evidentiary burdens were no different in the
environmental field than any other area of international law.
• In the Gabcikovo-Nagymaros case, Hungary and Slovakia
also invoked the precautionary principle. Again, the ICJ did
not feel the need to address the principle, limiting itself to a
passing reference to Hungary’s claim that the principle justified
the termination of the 1977 treaty and its recognition of the
parties’ agreement on the need to take environmental concerns
seriously and to take the required precautionary measures.
• The failure of the ICJ to refer to or apply the principle in its
consideration of the conditions under which Hungary could
invoke the concept of ecological necessity to preclude the
wrongfulness of its suspension of works on the two barrages in
1989.
• At that time, the precautionary principle had not yet
emerged and could not realistically be applied as
general international law.

• It may be that the ICJ also had this in mind when it

indicated later in the judgment that ‘[w]hat might have
been a correct application of the law in 1989 or 1992, if
the case had been before the Court then, could be a
miscarriage of justice if prescribed in 1997’.
The International Tribunal for the Law of the Sea:
In 1999, in the Southern Bluefin Tuna cases, Australia and New Zealand
requested the Tribunal to order ‘that the parties act consistently with the
precautionary principle in fishing for Southern Bluefin Tuna pending a final
settlement of the dispute’. Japan, the respondent state, did not address the
question of the status or effect of the principle.
New Zealand and Australia alleged that Japan had failed to comply with
its obligation to cooperate in the conservation of the southern bluefin
tuna stock by, inter alia, undertaking unilateral experimental fishing for
southern bluefin tuna in 1998 and 1999 and had requested an arbitral
tribunal to be constituted. The Applicants asked the arbitral tribunal to
declare that Japan had breached its obligations under Articles 64 and 116
to 119 of UNCLOS.
• As a consequence of the said breaches of UNCLOS, Japan
should refrain from authorizing or conducting any further
experimental fishing for SBT without the agreement of New
Zealand and Australia and negotiate and co-operate in good
faith with New Zealand and Australia with a view to agreeing
future conservation measures and total allowable catch for
southern bluefin tuna necessary for restoring the stock to
levels which could produce the maximum sustainable yield.
• Australia, Japan and New Zealand should each ensure that no action
was taken which might aggravate or extend the disputes submitted to
the arbitral tribunal.
• Australia, Japan and New Zealand should each ensure that no action
was taken which might prejudice the carrying out of any decision on
the merits which the arbitral tribunal may render.
• Australia, Japan and New Zealand should resume negotiations
without delay with a view to reaching agreement on measures for the
conservation and management of southern bluefin tuna.
• In its Order the Tribunal expressed the view that the parties
should ‘act with prudence and caution to ensure that effective
conservation measures are taken to prevent serious harm to
the stock of southern bluefin tuna’ (para. 77), that there was
‘scientific uncertainty regarding measures to be taken to
conserve the stock of southern bluefin tuna’ (para. 79), and that,
although it could not conclusively assess the scientific evidence
presented by the parties, measures should be taken as a matter
of urgency to preserve the rights of the parties and to avert
further deterioration of the southern bluefin tuna stock (para.
80). In ordering the parties to refrain from conducting
experimental fishing programmes, the Tribunal was plainly
taking a precautionary approach, as Judge Treves recognised in
his Separate Opinion.
• In 2001, in the MOX case, Ireland claimed that the United
Kingdom had failed to apply a precautionary approach to the
protection of the Irish Sea in the exercise of its decision-making
authority in relation to the direct and indirect consequences of
the operation of the MOX plant and international movements of
radioactive materials associated with the operation of the MOX
plan.

• The principle was invoked by Ireland at the provisional

measures phase to support its claim that the United Kingdom
had the burden of demonstrating that no harm would arise
from discharges and other consequences of the operation of the
MOX plant and to inform the assessment by the Tribunal of the
urgency of the measures it is required to take in respect of the
operation of the MOX plant.
• The Tribunal did not order the suspension of the operation of
the plant, as Ireland had requested, but instead ordered the
parties to co-operate and enter into consultations to exchange
further information on possible consequences for the Irish Sea
arising out of the commissioning of the MOX plant and to
devise, as appropriate, measures to prevent pollution of the
marine environment which might result from the operation of
the MOX plant.

• That Order, which has a certain precautionary character, was

premised on considerations of ‘prudence and caution’.
• In Vellore, Vellore Citizens Welfare Forum v. Union of India
(1996) for example, the Indian Supreme Court ruled that the
precautionary principle was an essential feature of ‘sustainable
development’ and as such part of customary international
law.
• The legal status of the precautionary principle is evolving.
There is certainly sufficient evidence of state practice to support
the conclusion that the principle, as elaborated in Principle 15 of
the Rio Declaration and various international conventions, has
now received sufficiently broad support to allow a strong
argument to be made that it reflects a principle of customary
law, and that within the context of the European Union it has
now achieved customary status, without prejudice to the
precise consequences of its application in any given case.