The precautionary principle in the European Union & its impact on international trade relations
Although elements of precaution were used in the environmental regulation of various countries in the 1970s, including the United States, it has been the European Union that has emerged as the main proponent of the precautionary principle, both in European regulatory policy and in international agreements.
The precautionary principle must be considered as an important and enduring feature of European and increasingly international policies aimed at dealing with the risk to the environment as well as human, plant and animal health in instances where the level of risk is not insignificant and where there is scientific uncertainty. Developed and applied originally in the field of environmental regulation, the precautionary principle has subsequently found application in other related policy fields such as human health, and is becoming an acceptable feature of – if not customary – international law.
Rightly or wrongly, the precautionary principle is also wrapped up in the current critique of “globalisation”, because it promises wider, more democratic participation in decision-making concerning issues of central importance to the sustainability and risks associated with economic and technological development. Precaution provides those sceptical of established policy-making procedures with a case for opening the policy process to wider participation and greater transparency and democratic accountability.
The central issue with regard to the EU’s application of the precautionary principle is whether it will form the basis for balanced policy that promotes sustainability and facilitates the growth of trade and investment. Or will it be used in an arbitrary fashion and simply wheeled out to justify controls on trade or investment that are dictated by commercial or political expediency?
Most of the concern expressed about EU policy relates to a number of trade disputes involving the United States. These include, in particular, the beef hormones case on which the WTO ruled against the EU ban on the grounds that it was inconsistent with Article 5(7) of the Agreements on Sanitary and Phytosanitary Measures. Precautionary measures taken by the EU were found to be inconsistent with the SPS agreement, which only allows for provisional measures based on precaution. The second case concerns genetically modified products where measures – taken by EU member states and the EU as a whole on the basis of precaution have also been challenged by the EU’s trading partners. The EU’s policy in these cases has not only been inconsistent with existing trade rules but also inconsistent in its application.
This inconsistency must be seen as a result of political expediency in the face of intense domestic pressure for a higher degree of precaution in risk management following a number of failures to provide sufficient protection for consumers and the environment. The latest and most significant failure concerned BSE (mad cow disease) where regulators withheld information on risk from consumers for largely commercial reasons, but the European Environment Agency has recently published a report listing a series of failures to protect the environment or human health over a period of the last 100 years.
The EU member states and European institutions have recognised the need to develop a clear and consistent approach to the use of the precautionary principle. This has resulted in a clearer statement on its application in the 2000 European Commission paper, which has subsequently been endorsed by member states and the European Parliament and in the revised food safety regime currently being implemented in the EU.
The European Union’s motivation in pressing for the application of the precautionary principle in international trade and environmental agreements therefore results from the fact that the precautionary principle has been established as the guiding principle for environmental and food safety regulation within the EU. This is firmly anchored in treaty provisions introduced in 1991, and in the jurisprudence of the European Court of Justice. This establishment of the precautionary principle has come about because of the political pressure from consumers and voters who lack confidence in the existing regulatory regimes and are sceptical of the ability of science to find all the answers. It is therefore inaccurate and superficial to characterise the EU’s insistence on the acceptance of the precautionary principle as a cover for protection. Trade issues arise because Europeans are demanding a higher degree of precaution than has been accepted by other governments.
The EU’s insistence on the precautionary principle has also been characterised as a rejection of “sound science”. This is also inaccurate or at least only part of the story. The EU’s approach to risk analysis is not anti-science; rather, it argues that risk assessment should be science-based. The EU approach does, however, place scientific risk assessment within a broader framework which also includes non-scientific value judgements of what is an acceptable risk for society.
There is a widespread acceptance of scientific uncertainty in risk assessment and management. For this reason, the vast majority of countries accept the need for precaution as a legitimate element in risk analysis. This is, for example, reflected in its inclusion of a range of multilateral environmental agreements in the SPS agreement and in the current discussions on Principles of Risk Analysis in the Codex Alimentarius. Differences arise not over the use, but rather the degree of precaution, and how to ensure that the inevitable regulatory discretion associated with the use of precaution is not used to limit trade “unfairly”.
Given the differences between public policy preferences between countries and regions, it is always going to be difficult to reach consensus on international standards governing what is acceptable risk. It is worth noting that standardssetting is as much a political as a scientific process with votes in the various relevant fora, such as Codex Committees, deciding on acceptable levels. Whilst there remains a need to continue work on international agreement on standards, the more likely policy approach to resolving tensions is agreeing on procedural criteria for the application of precaution. Such procedural criteria can help to ensure that discretion is not abused. This is the approach recommended in the recent draft on Principles for Risk Analysis within the context of work on the Codex Alimentarius. The proposed criteria include, for example, the requirement to continue efforts to improve scientific knowledge of the risks involved, proportionality, transparency, consistency, non-discrimination, the use of costbenefit analysis and provision for reviews of risk-assessment decisions and measures taken to mitigate risk. These criteria have already found expression in the EU’s policy guidelines and in other policy applications, such as in the new regulations on EU food safety.
One important difference between the EU and other countries is that the EU wishes to see “the” precautionary principle recognised in a wide range of international environmental and trade agreements. Other governments oppose this on the grounds that the international legal precedent that exists in environmental regulation is inappropriate for other policy fields. In other words, the EU wants “the” precautionary principle to cover all types of risk (environmental, food and animal health, etc.). This is consistent with EU practice. Other governments want to tailor the application of a precautionary approach to the specific policy area or risk.
Disputes between the EU and its trading partners over the application of the precautionary principle s eem likely to continue and could become much more serious, if, for example, there is a WTO case brought over EU bans – or labelling – of genetically modified products. The EU ban is influenced by genuine consumer and environmental concerns. They are not simply disguised protection. The EU’s trading partners have equally deep-seated but divergent views on how to deal with risk and what role precaution should play in regulation. These divergent views have developed over a period of time and can be said to be structural in nature. The WTO dispute settlement will not be able to resolve problems created by such structural differences. What is needed is a wider international debate on the role of precaution with a view to finding some agreed procedural criteria or guidelines on how precaution should be applied.
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