The Precautionary Principle and a Fair Allocation of the Burden of Proof in International Environmental Law

• Date: 01 November 2012
• DOI: http://doi.org/10.1111/reel.12001.x
• Published date: 01 November 2012
• Author: Monika Ambrus

The Precautionary Principle and a Fair

Allocation of the Burden of Proof in

International Environmental Law

Monika Ambrus

Notwithstanding the general acknowledgment of its

importance, there are still uncertainties and ambigu-

ities as to the precise meaning and actual application

of the precautionary principle in international envi-

ronmental law. In the context of decision making at

the inter-State level, it has been explained that one

of the interpretations of this principle means a ‘shift’ in

the allocation of the burden of proof. Unsurprisingly,

a similar effect of the principle can be, and has been,

claimed in dispute settlement. Given these claims, the

general aim of this article is twofold: first, to define

what a ‘shift’ in the allocation of the burden of proof

actually means; and second, to explore and assess

whether this theoretical/conceptual understanding of

the ‘shift’ is applied when the precautionary principle

is at stake, and whether there are good reasons to

apply it in dispute settlement and decision-making

processes.

INTRODUCTION

The principle1of precaution (or precautionary prin-

ciple, PP) started its journey in international environ-

mental law2twenty years ago in Rio de Janeiro, when it

received a very prominent place by the inclusion of a

definition in the Rio Declaration on Environment and

Development.3In 1992, the international community

committed itself to the idea that scientific uncertainty

should not be used to postpone action necessary for

the protection of the environment – that is, ‘decisions

should err on the side of environmental preservation’4

(in dubio pro natura). However, twenty years later we

still cannot convincingly talk about the ‘full application’

of the principle. One of the probable reasons for this is

that, notwithstanding the general acknowledgement of

its importance, there are still uncertainties and ambi-

guities as to its precise meaning and actual application.5

Remarkably, the 2012 Rio+20 summit did not contrib-

ute to a better understanding of the principle, with the

Conference paying only very limited attention to it.6

In the context of environmental decision making7at

the inter-State level, it has been explained that one of

the interpretations of the PP implies a shift in the allo-

cation of the burden of proof (BoP): a proponent of a

certain action should bear the onus of proving that the

activity will not be harmful. Unsurprisingly, a similar

effect of the PP can be, and has been, claimed in dispute

settlement. State parties to a dispute have also referred

to the applicability of this shift in (quasi-)judicial pro-

ceedings at the inter-State level; however, they have so

far been unsuccessful in this regard. Indeed, collecting

relevant scientific evidence as to the existence of (a

certain level of) risk is neither a simple nor a cheap

exercise, which implies that the allocation of the BoP

can have far-reaching consequences for the outcome of

a decision-making process, for dispute settlement, and

not the least for the environment. So what does this

BoP-shifting mean for the PP?

Against this backdrop, the general aim of this article

is twofold: first, to define what a ‘shift’ in the allocation

of the BoP actually means; and second, to explore and

1See, inter alia, D. Bodansky, ‘Deconstructing the Precautionary

Principle’, in: D.D. Caron and H.N. Scheiber (eds.), Bringing New Law

to Ocean Waters (Brill, 2004), 381, at 382.

2It has been included in numerous multilateral environmental agree-

ments (MEAs). See A. Trouwborst, Evolution and Status of the Pre-

cautionary Principle in International Law (Kluwer Law International,

2002), at 63ff.

3Rio Declaration on Environment and Development, in Report of

the UN Conference on Environment and Development (UN Doc.

A/CONF.151/26/Rev. 1 (Vol. I), 14 June 1992), Annex, Principle 15.

4See A. Trouwborst, n. 2 above, at 362.

5For a deconstruction of the principle, see D. Bodansky, n. 1 above,

at 389–391; and A. Arcuri, ‘Reconstructing Precaution, Deconstruct-

ing Misconceptions’, 21:3 Ethics and International Affairs (2007), 359.

6The PP is ‘only’ mentioned with regard to oceans and seas in the

main outcome document of the conference. See United Nations Con-

ference on Sustainable Development, The Future We Want (UN Doc.

A/CONF.216/L.1, 19 June 2012), at paragraphs 158 and 167.

7The term ‘decision making’ is understood here as including not only

decision making in individual cases, but also policy making in certain

instances. Although it can also be framed as decision making, dispute

settlement by (quasi-)judicial bodies is not included in this term for

the purposes of this article. ‘Decision making’ has also been referred

to as ‘implementation’. See, e.g., A. Trouwborst, ‘The Precautionary

Principle in General International Law: Combating the Babylonian

Confusion’, 16:2 Review of European Community and International

Environmental Law (2007), 185, at 192.

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Review of European Community & International Environmental Law

RECIEL 21 (3) 2012. ISSN 0962 8797

© 2012 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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