Caribbean Environment Programme

United Nations Environment Programme













RELEVANCE AND APPLICATION OF THE PRINCIPLE OF
PRECAUTIONARY ACTION TO THE CARIBBEAN
ENVIRONMENT PROGRAMME





CEP Technical Report No. 21
1993

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Note: The designations employed and the presentation of the material in this document do not imply the
expression of any opinion whatsoever on the part of UNEP concerning the legal status of any State,
Territory, city or area, or its author

ities, or concerning the delimitation of their frontiers or boundaries. The
document contains the views expressed by the authors acting in their individual capacity and may not
necessarily reflect the views of UNEP.

For bibliographic purposes the printed vers

ion of this document may be cited as:
UNEP: Relevance and Application of the Princi

ple of Precautionary Action to the Caribbean
Environment Programme. CEP Technical Report No. 21. UNEP Caribbean Environment Programme,

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TABLE OF CONTENTS

PREAMBLE
1
I. INTRODUCTION
2
II. THE PRECAUTIONARY PRINCIPLE
3
- What is the Precautionary Principle/Approach



2

- Precautionary Principle or Precautionary Approach


3

- Towards a Definition of a Precautionary Policy



3

-

Precedents
for
Definitions

5

III. PROBABLE ADVANTAGES AND DISADVANTAGES TO THE WIDER CARIBBEAN
REGION OF ADOPTION OF THE PRECAUTIONARY PRINCIPLE BY THE REGION. 15
- Advantages







8
- Disadvantages








9
IV. MECHANISMS FOR THE APPLICATION OF A PRECAUTIONARY APPROACH BY
THE STATES AND TERRITORIES OF THE WIDER CARIBBEAN REGION
18
- Application of Precaution by the Use of Existing Programmes and Instruments
10

- Application through the Development of New Instruments


12

- Development of New Precautionary Procedures and Techniques

13
BIBLIOGRAPHY 29

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PREAMBLE

The Fifth Intergovernmental Meeting on the Caribbean
Environment Programme and Second Meeting of the Contracting
Parties to the Cartagena Convention, Kingston, 17-18 January 1990,
requested the Secretariat by Decision 16 to study in depth the
mechanism of application of the Principle of Precautionary Action
and to prepare a document for consideration by the next
Intergovernmental and Contracting Parties Meeting.

This document responds to this request by providing:

A definition of the precautionary principle and an explanation of its
working, together with an outline of approaches taken in defining the
principle by other institutions;

· An analysis of the probable advantages and disadvantages to the
Wider Caribbean region of the adoption of the precautionary
principle; and

· Mechanisms for the application of a precautionary approach by
States and Territories within the Wider Caribbean region.

Presently there exists a large body of literature on this subject and it
is important to note that a similar exercise was conducted for the
Parties to the London Dumping Convention (LDC) in 1991. In
preparing this document the Secretariat drew heavily on the existing
literature, the LDC Report as well as information from UNEP. The
bibliography is contained in Annex I to this document. The
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document was presented and endorsed at the Sixth
Intergovernmental and Third Contracting Parties Meeting, convened
in Kingston, 16-18 November 1992.

I. INTRODUCTION

The UN Secretary General in his 1990 Report on the Law of the Sea
expressly recognized the "considerable significance" of the
precautionary principle for future approaches to marine environ-
mental protection and resource conservation and reported that it had
been "endorsed by virtually all recent international fora."
Additionally, in June 1992 the Rio Declaration endorsed the
precautionary approach (Principle 15) and a number of
international environmental treaties have also included reference to,
or acceptance of the principle.

Recent examples of the acceptance of this principle include: the
Framework Convention on Climate Change and the Convention on
Biological Diversity (both signed in Rio in June 1992); the 1992
Helsinki Convention on the Protection of the Marine Environment of
the Baltic Sea Area; the 1992 Helsinki Convention on the Protection
and Use of Transboundary Watercourses and Lakes; the 1992
Maastricht Treaty on European Union; the 1992 Paris Convention
for the Protection of the Marine Environment of the North East
Atlantic. Indeed, the Secretariat notes that a number of international
environmental lawyers would now argue that the precautionary
principle is moving from the sphere of international policy to that of
customary international law.

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II. THE PRECAUTIONARY PRINCIPLE

WHAT IS THE PRECAUTIONARY PRINCIPLE/APPROACH

Despite the widespread approval of the precautionary princi-
ple/approach which has been called "the most important new policy
approach in international environmental co-operation" (Freestone,
1990) commentators are still unclear as to its precise meaning.
Nevertheless it has been discussed in a number of international
environmental bodies and it is possible to outline its general thrust;
more detailed aspects of it will be considered in the section on
definitions.

The precautionary principle first emerged as an international
environmental instrument in the context of regional discussions on
the status of the North Sea. Despite regulation of both land based
pollution and ocean dumping by regional bodies the quality of the
North Sea continued to decline, raising questions as to the
effectiveness of the traditional approaches to environmental
regulation based on the assimilative capacity of the environment.
This traditional approach can be seen in the preamble to the London
Dumping Convention which contains the statement that "the
capacity of the sea to assimilate wastes and render them harmless,
and its ability to regenerate natural resources, is not unlimited."
This phrase was originally interpreted to mean that although the
capacity of the oceans was accepted as finite, nevertheless actions
were permissible unless evidence could be adduced that they caused
harm. However scientific evidence is seldom conclusive and some
scientists in any event argue that once detrimental effects are
registered, the assimilative capacity of the environment has already
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been exceeded.

The precautionary approach is innovative in that it changes the role
of scientific evidence. It requires that once environmental damage is
threatened action should be taken to control or abate possible
environmental interference even though there may still be scientific
uncertainty as to the effects of the activities. Hence the policy
response will be to adopt or develop clean technologies rather than
simply to assess the risks of various levels of pollutant emissions.
Such an approach is reflected in Article 4(3)(2) of the Bamako
Convention . The precautionary approach may also be used to
reverse the traditional burden of proof, so that in cases of scientific
uncertainty as to possible effect of certain activities, the burden of
proof is passed on to the potential polluter, who needs to prove that
his activities will not damage the environment. This approach is also
to be found in the Prior Justification Procedure of the Oslo
Convention.

The adoption of the precautionary principle and the implementation
of a precautionary approach therefore entails a shift in
decision-making in favour of a bias towards safety and prevention. It
means that in the case of doubt as to the effects on the environment,
preventive and remedial action is taken. In accordance with
Resolution 14/4 of 4 September 1991 of the London Dumping
Convention:

The precautionary approach makes explicit that preventive or
remedial action does not have to await the presentation of conclusive
scientific evidence of detrimental effects for the environment; instead,
preventive or remedial action is to be taken if scientific evidence
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makes it plausible that detrimental effects to the marine environment
may result. This means that policy makers cannot hide behind the
uncertainties inherent in the conclusions of scientific research and
that they have to take decisions on the basis of probabilities and
uncertainties.

Although a precautionary approach has been most frequently ap-
plied in the area of marine pollution, its incorporation into the Rio
Declaration as Principle 15 demonstrates clearly that it can be
applied to the entire spectrum of environmental policy making and to
all types of human impacts on the environment. The distinctive
feature of the precautionary principle/approach is not that it
dictates specific regulatory measures (as many different types of
measures can be used for implementation), but rather, the way in
which and the time at which the measures are adopted. (Hey 1991;
Nollkaemper, 1991). The implementing measures and mechanisms
that were originally developed in response to the problems of
harmful wastes most commonly refer to: clean production, no waste
technology, best available technology (BAT) and best environmental
practice (BEP). In its broader application no single regulatory
approach is called for and, indeed, a variety of approaches may be
necessary.

PRECAUTIONARY PRINCIPLE OR PRECAUTIONARY
APPROACH

A considerable amount of energy has been expended on
distinguishing between the precautionary principle and or the
precautionary approach. A common sense distinction suggested by a
recent commentator (Hey, 1992) is that a principle is a "general law
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or rule adopted or professed as a guide to action", whereas an
approach is "a way of considering or handling something". A
precautionary policy therefore is one which includes both, i.e. it is
based upon the principle and approaches environmental problems in
a precautionary manner. The policy would also include measures
-specific regulatory techniques, mechanisms or procedures - which
result from the application of a precautionary approach to a specific
problem - such as land based sources of pollution. This terminology
will be used in this paper.

TOWARDS A DEFINITION OF A PRECAUTIONARY POLICY

While broad agreement appears to exist that the precautionary
approach involves the rejection of the traditional assimilative
capacity approach, there is nevertheless considerable variation in the
use of these terms which have been endorsed by various policy fora
and in the legal texts in which they have been incorporated (see
Annex I). A cursory examination of these texts indicates that a single
definition is not easy to elaborate. In this regard, a number of
suggested definitions have been elaborated in this document and will
be discussed later, however, at the outset it might be more fruitful to
analyze the common elements of existing definitions as well as areas
of disagreement.

In the report to the Parties to the London Dumping Convention, a
number of common elements were identified in all the instruments:

The vulnerability of the environment;

· The limitations of science to predict accurately threats to the
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environment and the measures required to prevent such threats;

· The availability of practical alternatives (both methods of
production and products) which enable the termination or
minimisation of inputs into the environment; and

· The need for long term holistic economic considerations,
accounting for, among others, environmental degradation and the
costs of waste treatment.

In summary, the precautionary approach can thus be characterized
as assuming that science does not always provide the data or
information needed in a timely manner to effectively protect the
environment and that undesirable effects may be caused if measures
are taken only when science does provide such data or information. It
stresses the need for practical alternatives to complex research and
monitoring procedures which do not always pick up signals of
environmental degradation in light of the technical difficulty and cost
of monitoring more than a limited number of parameters.

Furthermore, it assumes that the cost of remedial clean-up measures
may be prohibitive, or that essential biological life-supporting
services may already be irreplaceable if action to protect the
environment is taken only when scientific certainty is available. It
also argues that current economic accounting methods do not
adequately recognize the true costs of resource depletion, frequently
underestimating the future environmental costs of substituting
man-made systems for damaged natural ones and overemphasizing
short term economic costs of remedial measures.

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However the implementation of such an approach does involve a
number of policy choices: most importantly a choice as to the level of
threat posed to the environment before the precautionary measures
are adopted. The different approaches adopted to this crucial
question are reflected in the various formulations adopted by various
instruments: States "must not wait for proof of harmful effects";
they should take "action ... even before a causal link has been
established by absolutely clear scientific evidence"; or "when there is
reason to assume that certain damage or harmful effects ... are likely
to be caused ..., even where there is no scientific evidence to prove a
causal link..."; they must "avoid potentially damaging effects ... even
where there is no scientific evidence to prove a causal link"; and are
committed to "eliminating and preventing pollution emissions where
there is reason to believe that damage or harmful effects are likely ...
even where there is inadequate or inconclusive scientific evidence to
prove a causal link ..." and "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 LDC Report listed the main divergencies between the definitions
as follows:

· The type of scientific evidence required (where there is scientific
debate, where there is inadequate or inconclusive scientific
evidence", "lack of full scientific certainty should not be used as a
reason for postponing measures)";

· The type of effects to be identified ("may result in irreversible
damage to the marine environment and human suffering",
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"threats of serious or irreversible damage", safeguarding the
marine ecosystem ... especially when there is reason to assume that
certain damage or harmful effects on the living resources of the
sea are likely to be caused", "reason to believe that damage or
harmful effects are likely to be caused", "significant risk of
damage to the environment");

· The substances involved ("the most dangerous substances",
"polluting emissions of substances that are persistent, toxic and
liable to bio-accumulate", "polluting emissions", "release of
substances, especially synthetic and persistent substances",
"potentially dangerous materials or the spread of potentially
dangerous pollutants", "activities which may irreversibly
jeopardize the environment"); and

· Economic considerations - although note that some definitions do
not refer to economic considerations at all ("taking economic costs
into consideration", "by the use of the best available technology..."
which "... is understood to take into account economic
availability", "if the balance of costs and benefits justifies it").

PRECEDENTS FOR DEFINITIONS

Should the Contracting Parties decide to adopt the precautionary
approach, the Secretariat would like to propose two main means by
which this could be accomplished:

Formal amendment to the Cartagena Convention

· This would require the convening of a Conference of
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Plenipotentiaries for this purpose in keeping with Article 18(1) of
the Convention. Article 4(3) of the Bamako Convention might
provide a precedent (although its strategies are primarily directed
at hazardous waste and relate to industrial pollution and waste
management - it does not assist with diffuse source pollution such
as that arising from agriculture); or

The Adoption of an Interpretive Resolution or Declaration

· Such a resolution or declaration would commit the States and
Territories participating in the Caribbean Environment
Programme to the use of the precautionary approach. For such an
approach The London Dumping Convention Resolution might be
a starting point.

The relevant Articles of the Bamako Convention and Resolution
44/14 of the London Dumping Convention are outlined below:

The Bamako Convention

The Convention on the Ban of the import into Africa and the control
of transboundary movement and management of hazardous wastes
within Africa, was adopted 29 January 1991, in Bamako, Mali under
the auspices of the Organization of African Unity. The Convention
explicitly adopts the precautionary approach as reflected in Article
4(3)(f)(g) and(h) which contains the following obligations:

"The Adoption of Precautionary Measures:

(f) Each Party shall strive to adopt and implement the preventative,
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precautionary approach to pollution problems which 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 co-operate
with each other in taking the appropriate measures to implement the
precautionary principle to pollution prevention through the
application of clean production methods, rather than the pursuit of a
permissible emissions approach based on assimilative capacity
assumptions;

(g) In this respect Parties shall promote clean production methods
applicable to entire product life-cycles including:

· Raw material selection, extraction and processing;

· Product conceptualization, design, manufacture and
assemblage;

· Materials transport during all phases;

· Industrial and household usage;

· Reintroduction of the product into industrial systems or nature
when it no longer serves a useful function;

· Clean production shall not include "end of pipe" pollution
controls such as filters and scrubbers, or chemical, physical or
biological treatment. Measures which reduce the volume of
waste by incineration or concentration, mask the hazard by
dilution, to transfer pollutants from one environmental medium
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to another, are also excluded.


(h) The issue of preventing the transfer to Africa of polluting
technologies shall be kept under systematic review by the Secretariat
of the Conference and periodic reports shall be made to the
Conference by the Parties."

Resolution 44/14 of the London Dumping Convention

At their Fourteenth Consultative Meeting in 1991 the Parties to the
London Dumping Convention adopted a Resolution which was
predicated upon recognition of, inter alia, the following:

"That human activities and social development need to managed in a
manner that will limit contamination of the marine environment by
wastes and other matter, and thereby ensure that the viability of
marine ecosystems and the legitimate uses of the sea are sustained for
the benefit of present and future generations"...and

"That existing pollution control measures, under the London
Dumping Convention, have been strengthened by shifting the
emphasis from a system of controlled dumping based on assumptions
of the assimilative capacity of the oceans, to approaches based on
precaution and prevention."

The Parties then adopted the following language in Resolution 44/14
regarding the application of a precautionary approach in
environmental protection within the framework of the London
Dumping Convention:
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"AGREE that in implementing the London Dumping Convention the
Contracting Parties shall be guided by a precautionary approach to
environmental protection whereby appropriate preventative
measures are taken when there is reason to believe that substances or
energy introduced into the marine environment are likely to cause
harm even when there is no conclusive evidence to prove a causal
relationship between inputs and their effects; and

AGREE FURTHER that Contracting Parties shall take all necessary
steps to ensure the effective implementation of the precautionary
approach to environmental protection and to this end they shall:

· encourage prevention of pollution at the source, by the application
of clean production methods, including raw materials selection,
product substitution and clean production technologies and
processes and waste minimisation throughout society;

· evaluate the environmental and economic consequences of
alternative methods of waste management, including long term
consequences;

· encourage and use as fully as possible scientific and
socio-economic research in order to achieve an improved
understanding on which to base long-range policy options;

· endeavour to reduce risk and scientific uncertainty relating to
proposed disposal operations; and

· continue to take measures to ensure that potential adverse impacts
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of any dumping are minimized, and that adequate monitoring is
provided for early detection and mitigation of these impacts."
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III. PROBABLE ADVANTAGES AND DISADVANTAGES TO THE WIDER CARIBBEAN
REGION OF ADOPTION OF THE PRECAUTIONARY PRINCIPLE BY THE REGION.

In order to assist governments in assessing the significance of the pre-
cautionary approach for the Wider Caribbean region, the Secretariat
has outlined a number of the probable advantages and
disadvantages. Please note that this is not a definitive list, nor have
the factors been listed in order of importance:

ADVANTAGES:

The coastal areas of the region are rich in fragile marine ecosystems,
particularly corals, which have taken hundreds of years to develop
and which are highly susceptible to land or marine generated
pollution. Given the close proximity of many of the countries of the
region and the interrelationship of many of their ecosystem support
mechanisms (such as fish spawning areas), a general commitment to
the precautionary approach to any marine environmental
interference is consistent with the goal of sustainability;

· The economies of a large number of the countries of the region are
highly dependent upon the marine environment primarily through
tourism and fishing. These major economic sectors are the first to
be affected as a result of degraded ecosystems such as coral reefs,
mangrove forests and sea grass beds. Remedial action, taken after
harmful effects are evident in a fragile system, may involve very
expensive clean-up operations or, at worst, the damage to essential
life-supporting systems may be irreparable. Remedial measures
for the environment will not necessarily revive a damaged tourist
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industry,particularly in the short term;

· In the light of the relatively weak science base of the region and
the shortage of personnel to conduct the extensive and expensive
processes of effective monitoring, the placing of the burden of
proof on those advocating potentially damaging emissions or other
activities having environmental effects would be a cheaper more
practical alternative to extensive monitoring activities ex post
facto;

· The States and Territories participating in the Caribbean
Environment Programme have already indicated their disquiet at
a number of activities which the precautionary approach would
regulate, such as land based sources of pollution and the
transboundary movement of hazardous wastes. The formal
adoption of the principle would allow a more holistic and
consistent approach to be taken to these types of activities; and

· The region has already committed itself to a number of the key
concepts involved in a precautionary approach, such as Environ-
mental Impact Assessment (EIA), research and monitoring,
protection of fragile and endangered ecosystems and habitats. The
adoption of the principle by the States and Territories of the
region acting through the Cartagena Convention would assist
individual countries in maintaining these principles in the face of
possible pressure from extra-regional investors and others. It may
also provide a conduit for donor assistance at a regional level to
assist with short term costs while we adopt this approach.

DISADVANTAGES:
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· Uncertainty remains as to the exact content of the principle.
Concentration on principles rather than measures might, it has
been argued, detract attention from the more concrete actions
which may be taken to address environmental degradation in the
region;

· The region is heavily dependent upon capital imports. The
commitment to a precautionary approach including for example a
Best Environmental Practice (BEP) or Best Available Technology
(BAT) principle might well discourage investment by companies
seeking to relocate industries from other regions;

· BEP, BAT and other precautionary measures often cost money to
install or implement. Thus they may be more expensive in the
short term than a "wait and see" approach;

· Some economists argue (OECD, 1991) that it is economically more
prudent to spend money in the future on the scientific means to
address specific environmental hazards once they have been
clearly and scientifically identified than on expensive precau-
tionary measures in the short term, some of which may not prove
necessary; and

· Producers may try to shift the added costs of cleaner technologies
onto the consumer, thus making certain products more expensive,
or onto government, with the consequence of needing greater
"start-up" assistance.


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IV. MECHANISMS FOR THE APPLICATION OF A PRECAUTIONARY APPROACH BY
THE STATES AND TERRITORIES OF THE WIDER CARIBBEAN REGION

A precautionary approach may be applied within the region at a
number of different levels and through a wide variety of mechanisms.
The Secretariat would like to offer the following non exhaustive
framework.

There are two main levels at which such an approach can be applied.
Firstly, it would provide a guiding philosophy against which various
activities of the Caribbean Environment Programme (CEP) can be
measured. Secondly, procedures within existing instruments or in
new instruments may be developed to ensure that scientific
uncertainty does not act as an obstacle to actions intended to protect
the environment. The burden of proof could be passed to those
opposing remedial or preventive measures.

These procedures could be of the following kinds:

· Technical procedures, such as environmental impact procedures,
prior justification procedures (such as that used by the Oslo
Convention) and assessment procedures (as in the LDC "new
assessment procedures" (Thorne-Miller, 1992);

· Administrative procedures such as prior consultation, donor
funding arrangements and arrangements for technology transfer
and exchange of information;

· Legal procedures, voting procedures (e.g. movement to majority
voting), enforcement mechanisms, strict liability regimes,
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relationship with other environmental conventions.

In relation to the North Sea and North Atlantic region it has been
suggested that majority-voting (with or without an "opt-out"
provision for those outvoted) would assist a precautionary approach
in that it would ensure stronger decisions by eliminating the "lowest
common denominator approach" (whereby the decision reflects the
view of the most reluctant party) and allow actions to be taken
despite the unwillingness of a minority or even one party (Hey, 1991).
Procedures for amending annexes under the Cartagena Convention
(Article 19) already reflect such a procedure.

A commitment to a precautionary approach by the States and Terri-
tories of the region within the framework of the CEP could imply
both a commitment to the use of that approach within the regional
instruments, as well as within national policies. In any event the
nature of many of the obligations undertaken by governments
participating in CEP necessarily requires a national dimension in
that they require implementation by national policies and legislation.
This section of the document looks initially at existing mechanisms
within the CEP and continues to examine possible new mechanisms.

APPLICATION OF PRECAUTION BY THE USE OF EXISTING
PROGRAMMES AND INSTRUMENTS

The Action Plan of the Caribbean Environment Programme as well
as the Cartagena Convention and its Protocols already contain
commitments to issues which would form part of a general
precautionary approach and mechanisms which may be used to
implement a commitment to a precautionary approach. These
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include commitments to a number of the constituent elements of such
an approach, namely:

· Sustainable development in the region;
· Environmental Impact Assessment;
· Sound Environmental Management and Planning;
· Co-operation on Scientific and Technical Research; and
· Research and monitoring programmes.

The adoption of such an approach could therefore explicitly affect
the interpretation of these existing obligations, insofar as they are
procedural requirements. A commitment to a precautionary policy
(to the extent that it not already adopted de facto) would simply
provide a philosophy within which existing procedures would
operate.

The Cartagena Convention (CC) and the SPAW Protocol both
provide procedures for country reports (CC, Art. 22; SPAW, Art.19),
Countries participating in CEP could commit themselves to reporting
on a regular basis on the way that the approach was being adopted
within their own national system.

The Monitoring Committee too would have a role, as envisaged by
the Convention itself, but yet to be exercised (CC: Art. 16(2)(b)), in
discussing and commenting on such reports for the benefit of the
Meetings of the Parties.

In addition to the legal texts themselves the existing regional
programmes of the Action Plan of CEP also provide important
opportunities for implementation of a precautionary approach. Many
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of the techniques and mechanisms discussed elsewhere in this
document can be as, if not more, easily incorporated in programme
decisions, recommendations and activities as within formal legal
instruments. It is important that implementing actions reflect
regional and local conditions, Programme activities operate within
the important regional perspective and are also often directed
towards national activities and implementation, an important
dimension for the effective implementation of any policy approach.
All programme activities would be relevant, but those most
significant would appear to be:

Assessment and Control of Marine Pollution (CEPPOL)

Assessment and control of marine pollution is at the heart of the
debate about the precautionary approach. Chapter 17 of Agenda 21
from the UNCED Meeting in June stressed the needs for a
precautionary approach to marine pollution at an operational level.
Existing programme activities in this area could be relatively easily
adapted to reflect a precautionary approach and CEPPOL itself
could indeed be used to develop and implement precautionary
techniques for use by participating States and Territories in the
crucial area of marine pollution.

Specially Protected Areas and Wildlife (SPAW)

The SPAW Protocol can already be said to reflect a precautionary
approach to issues such as sustainable resource management,
environmental impact assessment, scientific co-operation and
monitoring. Indeed the concept of protecting areas and wildlife
species can itself be precautionary. Please note for example the
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obligation to prevent species becoming endangered in Article 3(3) of
the Protocol. The explicit incorporation of a precautionary approach
into SPAW Programme activities would strengthen the underlying
philosophy of the existing programme.

Integrated Planning and Institutional Development for the Manage-
ment of Marine and Coastal Resources (IPID)

The concept of integrated planning is central to a precautionary
approach, but planning itself is simply a tool to forecast potential
problems and to implement policy. The adoption of a precautionary
policy in relation to the marine and coastal resources of the region
would therefore require incorporation into planning procedures and
policy decisions on the whole range of regulations for land and water
use.

Information Systems for the Management of Marine and Coastal Re-
sources and Education, Training and Public Awareness for the
Management of Marine and Coastal Resources

A precautionary approach does not (as some critics have suggested
(GESAMP 1991)) disregard scientific knowledge and techniques. It is
however the limitations of existing knowledge as well as traditional
approaches which have prompted the emergence of this new
approach. The need to improve scientific knowledge about
environmental systems in the region, the need to develop
management techniques reflecting the precautionary approach and
the need to implement it, as well as programmes of education,
training and awareness for governments and peoples throughout the
region, underpin a precautionary policy approach as it does any
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other approach. Hence the two Programme Areas addressing these
issues would also be affected by and involved in the implementation
of such an approach.


APPLICATION THROUGH THE DEVELOPMENT OF NEW
INSTRUMENTS

The proposed Land Based Sources of Pollution Protocol is to provide
regulations to reduce land based pollution. Central to the devel-
opment of this protocol will be the precautionary philosophy. It
would be important therefore that the new Protocol reflect that
philosophy in its drafting. In particular this could entail:

· A commitment to clean technology rather than "end of pipeline"
controls (see the Bamako Convention);

· A list of substances, the discharge of which is prohibited within the
region - or a "reverse listing" procedure whereby only named
substances may be released into the environment under very strict
guidelines. Such a list should be precautionary in that it should
reflect a "suspected threat" rather than "proven harm" approach.
To prevent scientific uncertainty from acting as an obstruction to
the addition of new substances to a banned list or their deletion
from a "reverse list", a majority voting procedure, as envisaged
for amendments to annexes under the Cartagena Convention
(Article 19) would be central to such a philosophy. This is
particularly important in semi-enclosed seas such as the Wider
Caribbean.

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It is also important that the philosophy of precaution be reflected in
the proposed Transboundary Movement of Hazardous Waste
Protocol when a draft is produced. Additionally, the Contracting
Parties to the Cartagena Convention have also agreed to take "all
appropriate measures." These measures would normally be in the
form of a Protocol or other regional legal agreements - in relation to
a number of other areas. To conclude the agreements themselves
would be precautionary but in addition a precautionary approach
would be incorporated into them.

The new areas which have been designated in the Cartagena
Convention itself are:

· Pollution from Sea-Bed Activities (Article 8);
· Pollution from Land Based Sources (Article 8);
· Airborne Pollution (Article 9);
· Environmental Impact Assessment (Article 12);
· Scientific and Technical Co-operation (Article 13);and
· Liability and Compensation for damage resulting from pollution
(Article 14).

In the Cartagena Convention regional co-operation in ensuring
effective implementation of existing applicable international rules
and standards is also envisaged in relation to:

· Pollution from Ships (Article 5); and
· Pollution caused by Dumping (Article 6).


DEVELOPMENT OF NEW PRECAUTIONARY PROCEDURES
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AND TECHNIQUES

The two sections above have dealt with the instrumentalities for the
possible implementation of a precautionary approach but both
programme areas and treaty regimes would need to consider the
development and introduction of new procedures and techniques
reflecting a precautionary approach. Examples can be found in
environmental management regimes elsewhere, the underpinning
concept of which is that lack of scientific certainty should not be used
as a reason for deferring measures to prevent harm to the
environment. Many of the mechanisms set out below have been
developed within the context of existing regulatory regimes, but
further new mechanisms and approaches may need to be developed
appropriate for those areas in the Wider Caribbean region which
have not yet established efficient environmental regulatory
frameworks.

AT THE REGIONAL LEVEL

Legal regimes regulating land based sources of pollution could for
example incorporate:

· Prior justification procedures: such procedures reverse the
traditional burden of proof in environmental pollution cases, so
that the burden of proof is put upon the individual proposing a
possibly harmful activity to show that no harm will be caused.
Scientific uncertainty therefore works for, rather than against, the
environment;

· Requirement of an ecological restoration plan including a
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financing proposal, prior to approval of developments,
particularly those with potential negative impacts;

· Assessment procedures for waste disposal which incorporate
devices such as:

i) "Reverse listing" prohibition lists, i.e. wastes may only be
discharged into the environment if they are listed - all other
discharges are banned;

ii) Waste prevention audits: all applications for waste disposal
permits would be refused and existing permits reviewed unless waste
reduction has been explicitly addressed by the applicant; and

iii) Requirements for use of Best Available Technology [BAT] or Best
Environmental Practices [BEP] in all new industrial development
activities in order to establish the use of clean technologies in the
region. It would be important that adding an economic qualifier to
these requirements, e.g., Best Available Technology Not Entailing
Excessive Costs (so called BATNEEC) should not be used to
undermine these requirements in developing countries. Regional
organizations could provide an information clearing house for clean
technologies.

At a Procedural Level, international environmental lawyers have
often argued that technical decisions should be taken by majority
vote rather than by consensus. This would avoid what has been called
the "Slowest Boat" rule (Sand, 1990; Hey, 1991). In fact the Annex
Amendment system of the Cartagena Convention already
incorporates this as reflected in Article 19.
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AT THE NATIONAL LEVEL

Similar techniques to those outlined above can be used at a national
level, other techniques for national implementation might include:

· Prior Justification requirements for Environmental Impact
Assessment for new developments- this applies the same technique
to planning decisions as to pollution. Developments are presumed
to cross the threshold of unacceptable harm to the environment
until proof can be adduced to the contrary. Bonds for possible
clean up or environmental restitution can then be required as part
of the permit system;

· Moratorium on new or renewed permits for activities or
discharges found to be causing unacceptable environmental harm;

· "Environmental Audits" on all industries to identify all wastes
generated and pathways by which they enter the environment.
These would also identify failures to use BAT, BEP etc. and
provide opportunities to introduce clean technologies; and

· Revise economic accounting methods for economic and resource
planning. These should reflect:

· The real and ongoing costs of losses due to depletion of both
mineral and biological resources;

· Costs and problems of resource substitution (e.g. water
purification systems for polluted watercourses, building
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concrete bulwarks against erosion where mangrove forests have
been grubbed up);

· Ongoing costs of environmental degradation (health costs, loss
of tourism revenue);

· Costs of waste treatment (met by public authorities rather than
producers); and

· "Non-use" values of natural systems (cultural, option and
existence values).

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BIBLIOGRAPHY


TREATIES/DECLARATIONS:

· 1984 Ministerial Declaration of the International Conference on
the Protection of the North Sea, Bremen, 1 November, 1984.

· 1985 Convention for the Protection of the Ozone Layer, Vienna,
March, 1985;

· 1987 Montreal Protocol (to the Vienna Convention) on substances
that deplete the Ozone Layer (adjusted and amended, London,
1990)

· 1987 Ministerial Declaration of the Second International Confer-
ence on the Protection of the North Sea, London, 25 November,
1987.

· 1989 Parcom Recommendation (22 June 1989) of the Parties to the
Paris Conventions for the prevention of marine pollution from
land based sources on the Principle of Precautionary action;

· 1989 Oscom Decision 89/1 (14 June 1989) on the reduction and
cessation of dumping industrial wastes at sea (Prior Justification
Procedure) .

· 1989 UNEP Governing Council Fifteenth Session (25 May 1989):
Decision 15/27 on the precautionary approach to marine pollution,
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including waste-dumping at sea, May 1989.

· 1989, Decision on Dumping of Sixth Meeting of Parties to Barcelo-
na Convention for the Protection of the Mediterranean Sea against
Pollution, Athens, October 1989.

· 1989 Statement of Nordic Council Conference on Pollution of the
Seas, Copenhagen, October 1989.

· 1990 Ministerial Declaration of the Third International Confer-
ence on the North Sea, The Hague, 8 March, 1990.

· 1990 UNEP Governing Council Decision SS.11/4 B, A
Comprehensive Approach to Hazardous Waste, Special Session, 3
August 1990.

· 1990, UN Economic Commission for Europe (ECE) Declaration on
Sustainable Development in the ECE Region, and Joint Agenda
for Action, Bergen, May 1990.

· 1991, OAU Bamako Convention on the Ban of the Import into
Africa and the Control of Transboundary Movement and
Management of Hazardous Wastes in Africa, Bamako, Mali, 30
January 1991.

· 1991 UN Economic and Social Commission for Asia and the
Pacific (ESCAP), Ministerial Declaration on Environmentally
Sound and Sustainable Development in Asia and the Pacific,
Bankok, October, 1991

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· 1992 Convention on Biological Diversity, UNCED, Rio de Janeiro,
June 1992;

· 1992 United Nations Framework Convention on Climate Change,
UNCED, Rio de Janeiro, June 1992;

· 1992 Rio Declaration on Environment and Development, UNCED,
Rio de Janeiro, June 1992;

· 1992, Agenda 21, UNCED, Rio de Janeiro, June 1992;

· 1990 Ministerial Declaration of Second World Climate
Conference, Geneva, 7 November 1990;

· 1992 Treaty on European Union, Maastricht, 7 February, 1992.

· 1992 Convention on the Protection of the Marine Environment of
the Baltic Sea Area, Helsinki, 1992;

· 1992 Convention on the Protection and Use of Transboundary
Watercourses and Lakes, Helsinki, 1992;

· 1992 Paris Convention for the Protection of the Marine Environ-
ment of the North East Atlantic, September 1992;


SELECTED DOCUMENTS

GESAMP: (IMO/FAO/UNESCO/WMO/WHO/IAEA/UN/UNEP
Joint group of experts on scientific aspects of marine pollution)
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Environmental Capacity: an approach to marine pollution preven-
tion, GESAMP Reports and Studies No. 30, FAO, 1986.

Strategies for Marine Environmental Protection, GESAMP Reports
and Studies No. 45, IMO, 1991.

London Dumping Convention, LDC 12/Inf.27, 1989

Greenpeace International, International fora which have accepted
the precautionary principle 1 November 1989.

LDC 12/Inf.26, 1989
Greenpeace International, International fora which advocate and end
to dumping of wastes at sea, 1 November 1989.

LDC 12/12/Add.1, 1989
Note by the Secretariat, Precautionary Approach 3 August 1989.

LDC 12/12, 1989
Note by Secretariat, Long term Strategy for the Convention, 25 July
1989.

LDC 13/3/2, 1990
Greenpeace International, Protection of the marine environment
through the "precautionary principle" 6 August 1990.

LDC 13/Inf.9, 1990
Note by Secretariat, London Dumping Convention: the First Decade
and Beyond, 10 August 1990.
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LDC 14/4, 1991
Note by Secretariat,
The application of a precautionary approach to environmental
protection within the framework of the Convention: The Precau-
tionary Approach and the London Dumping Convention, 4
September 1991.

LDC 14/Inf.9 1991
Note by Secretariat, The application of a precautionary approach to
environmental protection within the framework of the Convention:
Dealing with Uncertainty, 10 October 1991.

LDC/SG 13/8, 1990
Note by Secretariat, Interpretation and Implementation of the
Precautionary Approach 14 March 1990.

LDC/SG 13/8/1, 1990
Federal Republic of Germany, Remarks on the Assessment of Data
and the Principle of Precaution 20 March 1990

LDC/SG 15/15 1992
Report of Fifteenth Meeting of Scientific Group,(consideration of
New Assessment Procedure), 2 July 1992

LDC.2/Circ.266
Draft New Assessment Procedure (NAP) for the London Dumping
Convention, 12 April 1992

OECD
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ENV/EC/ECO(91)12, 1991
OECD Environment Committee, Group of Economic Experts,
Dealing with Uncertainty, 1991.

UNCED
PrepCom 3, Marine Pollution Prevention and Control Strategies,
1991.


LITERATURE

James Cameron and Juli Abouchar, "The Precautionary Principle:
A Fundamental Principle of Law and Policy for the Protection of the
Global Environment" (1991) 14 Boston College International Law
Review pp. 1-17.

James Cameron and Jacob Werksman, The Precautionary Principle:
a policy for action in the face of uncertainty, Centre for International
Environmental Law, King's College, London. Background Paper
1/1991.

David Freestone, "The Precautionary Principle" in Robin Churchill
and David Freestone, International Law and Global Climate Change
1991.

J.S. Gray, "Statistics and the Precautionary Principle" (1990) 21
Marine Pollution Bulletin pp. 174-176.

Lothar Guendling, "The Status in International Law of the Principle
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of Precautionary Action" in David Freestone and Ton IJlstra, The
North Sea: Perspectives on Regional Environmental Co-operation
(Special Issue of the International Journal of Estuarine and Coastal
Law), 1990, pp. 23-46.

Ellen Hey, "The Precautionary Approach: Implications of the
revision of the Oslo and Paris Conventions" (1991) 15 Marine Policy
pp. 244-254.

Ellen Hey, "The Precautionary Principle in Environmental Law and
Policy: Institutionalizing Caution" (1992) IV Georgetown Interna-
tional Environmental Law Review pp. 303-318.

Paul Johnston and Mark Simmonds, "Precautionary Principle"
(1990) 21 Marine Pollution Bulletin p. 402.

Andre Nollkaemper, "The Precautionary Principle in International
Environmental Law: What's New Under the Sun? (1991) 22 Marine
Pollution Bulletin pp. 107-111.

Peter H. Sand, Lessons Learned in Global Environmental Governance,
World Resources Institute, New York 1990.

K. R. Sperling, "The Dangers of Risk Assessment within the Frame-
work of the Marine Dumping Convention" (1988) 19 Marine
Pollution Bulletin pp. 9-10.

K.C. Stairs and P.A. Johnston, "The Precautionary Action Approach
to Environmental Protection" Proceedings of the International
Conference on Environmental Pollution (B. Nath and J.P. Robinson
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(eds) Lisbon 1991. European Centre for Pollution Research, pp.
473-479.

A.R.D. Stebbing, "Environmental Capacity and the Precautionary
Principle" (1992) 24 Marine Pollution Bulletin pp. 287-295.

Boyce Thorne-Miller, "The LDC, the Precautionary Approach and
the Assessment of Wastes for Sea-Disposal" (1992) 24 Marine
Pollution Bulletin pp. 335-339.


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