Of international environmental law in the application of the precautionary principle

[KeyWords] precautionary principle thesis of international environmental law international customary law cost - benefit analysis
[Abstract] precautionary principle in international environmental law, but in a wide range of uses the basic principles of a lot of controversy, although the international community This principle has been reached a preliminary consensus, but in the specific theoretical and practical, there are still many blind spots and debate, and more specifically, the precautionary principle is the emerging principles of international law. For discussion of the precautionary principle intensified, mainly for the applicable rules of international law and its status. This paper attempts from these two aspects, combined with the reality of developing countries and China's national conditions, international environmental law in the Application of the precautionary principle be briefly discussed.

One.

Outlined precautionary principle in modern society, the increasing level of economic take-off, the increasing complexity of social life, of science and technology, but these can not deny that we can not measure every risk factor in a social environment in which social reality . From SARS to H1N1, from earthquake to earthquake Yushu ... ... these have been telling us that risk is always there. We live in a world more complex, the nature of the ruthless and the Application of new technology gave humanity the potential risks. How to deal with natural disasters or man-made disaster caused by a variety of risks, is the inevitable problem of human society. At a reasonable cost risk on the basis of the precautionary become an inevitable choice for many government, legal sense of the precautionary principle also will be born.

Precautionary principle originated in the 20th century, the German environmental law 60 years in the "vorsorgepnnzip" concept, and gradually developed into the regional environmental treaties, such as the 1984 Second International North Sea Protection Conference "published in London Declaration "on the precautionary principle on a systematic exposition:" To protect the North Sea from the harmful effects of the most dangerous substances, if not absolutely clear scientific evidence to prove causation, risk prevention measures should be taken to control the entry of such substances , it is necessary. " "London Declaration" will therefore be the first clearly explains that the precautionary principle in international documents.

For the precautionary principle (precautionary principle) a complete definition of customary international law there is no established representation. But many scholars are the "Rio Declaration on Environment and Development," in Principle 15 of the more authoritative statements as that "in order to protect the environment, each country should be based on the ability of their extensive use of risk prevention. As long as there is a serious threats or irreversible damage, lack of full scientific certainty can not be taken as a reason to delay to prevent environmental degradation cost - effective measures "[1]. Some scholars think it comes from l998 on "warm Sibu Ryder Joint Declaration": When an activity on human health or environmental threat of harm, even if some cause and effect relationship has not been fully established scientifically, it should be to take risk prevention measures. In this case, it should be by the activities of supporters rather than the public bear the burden of proof. [2] also in other international treaties, there are still many expressions on the precautionary principle, such as "United Nations World Charter for Nature," provides that: "When the potential adverse effects for the full understanding of, the activities should not be"; "Biodiversity Convention "in the preface to the discussion:" When there is a significant reduction or loss of biodiversity, threats, lack of sufficient scientific evidence should not be used as a stop 'to take measures to avoid or minimize such a threat' reason ... ... "[3]; Other also includes the" United Nations Framework Convention on Climate Change "," Helsinki Convention "and so numerous. These definitions are similar, are intended to express: Science does not always provide first-hand information to play an effective role in protecting the environment, over-reliance on scientific evidence may lead to environmental protection measures are not emergency relief, or even counterproductive. So the basis in science not yet fully, they should be ready to take some preventive measures to avoid the occurrence of harm or expanded. Thus, the precautionary principle is to ask the decision-making process in environment and resources to take into account not only the obvious risks identified, but also the smaller the negative impact of lack of scientific certainty should be with care.

Although the precautionary principle in international environmental law is the most innovative and influential a principle, and in many international treaties has the shadow of its existence, which some scholars have commented: "after 1990 almost all international environmental law instruments adopted precautionary principle. "[4], but it is undeniable that the precautionary principle for the exact formulation has not yet been formed, due to the position of countries, different interests, the international definition on the precautionary principle, substantive content, as well as its international status for all elements of a lack of consensus. So, for that principle in the international arena there are many practical Application of space requires constant effort.


II. Applicable conditions of the precautionary principle
As mentioned above, the precautionary principle is just a big frame system, the specific contents of the need to continue to fill, so there is ambiguity on the Application. To avoid the resulting uncertainty or legal decisions based on the principle of fair and reasonable, and many scholars have made a number of process in their Application need to comply with the conditions, manifested in the following areas:
first , scientific uncertainty. Scientific uncertainty mainly refers to human activities that scientists of the future for all possible situations can not be given full recognition, such as the doubling of atmospheric carbon dioxide concentration after the global and regional effects on human health effects of genetically modified products, etc., all belong to scientific uncertainty. The precautionary principle presupposes the existence of scientific uncertainty, that is, an activity or thing of danger or harm is no scientific certainty on the conclusions. In view of this danger may exist, and we deserved to take effective measures to actively discourage this dangerous place. Scientific uncertainty mainly from two aspects: First, according to common sense, an activity should cause an environmental risk or harm, but the lack of clear scientific evidence to prove that the risk will occur; second , a risk will occur or may already exist, but can not prove the reasons causing the risk, the so-called cause and effect relationship is not clear. [5]
Second, the need for risk assessment. The complexity of social life determine the risk of the inevitable, thus we have to a certain coefficient of risk assessment that the risk of which shall take the necessary measures to measure accurately. Some scholars refer to it as the risk threshold, [6] that within a single dimension in which the precautionary principle should be taken in the threshold above shall take appropriate measures under the threshold may be not as . Of course, the threshold is not determined constant, with each activity will be increased to reduce the risk of its coefficient, that is high risk and low threshold.

Third, cost - benefit analysis. Some scholars have pointed out: the environmental risk management process, such as excessive emphasis on the precautionary principle, the expense of other social welfare may, therefore, as to other social and economic factors into account scientific uncertainty on environmental risk taken preventive measures, will be a cost-risk management. [7] In short, the use of the precautionary principle is to prevent the conduct of whether an activity can produce greater benefits, including economic or environmental. The precautionary principle seems to be to protect a disadvantaged situation from disease, accidents and death risk, but it is a rough, sometimes all those goals is to establish an improper method, not only because it may even has been used in some cases compulsory, where the precautionary principle is likely to harm future generations, those who harm rather than help disadvantaged people. [8] In this regard, in the "Framework Convention on Climate Change," also reflected in expressions as: the precautionary measures taken must be cost-effective to meet the interests of the world. Thus, in the application of the precautionary principle, we must conduct a cost benefit analysis to ensure that the benefits outweigh the costs.


Fourth, the burden of proof and application of the principle of strict liability. In the application of the principle that whether or not the issue, the burden of proof should be by the developer that their actions will not cause serious or irreversible environmental damage, the burden of proof. After all, the developer holds a more comprehensive data and information, developers are often coupled with a strong social side, a solid economic base, and information asymmetry in the relative position of the relative scarcity of information available, the relatively low status and weak economic foundation, It is difficult to cite evidence to support their point of view. Thus, according to the principles of the traditional burden of proof, namely, "who alleges evidence" burden of proof will be relative consequences of not assume the risk of losing. Therefore, in the application of the precautionary principle should be used during the burden of proof reversed, with the developer the burden of proof, as the relative protection of disadvantaged people. In other words, the precautionary principle to environmental cases the burden of proof. Application of the principle of strict liability also protects the inversion of the burden of proof, but also may have inspired the prevention of environmental impacts or consequences of uncertain events.

III. The status of international law, the precautionary principle of risk
the academic status of the precautionary principle in international law, there is still a controversy, but mainly in the following three points: first, that the precautionary principle has become the basic principles of customary international law; the second that the precautionary principle is not the basic principles of customary international law; and third, that the precautionary principle is emerging among the fundamental principles of customary international law. In this regard, we must first clear what is the basic principle of international customary law. Under the "Convention on International Court of Justice" in the relevant provisions of customary international law must satisfy two conditions: "common practice" and "juris." Pushing the basic principles of customary international law is generally applicable to countries with legally binding rules for guidance.

Support the first view of the scholars believe that the precautionary principle has been invoked by many legal documents and court decisions in some of this has been applied, for example, "MOX fuel plant case" in use. In addition, although the precautionary principle has always to some degree the nature of soft law, soft law is the law but also should be observed by all countries, some countries do not comply with the principle of non-performance of its performance is not The principle of non-binding.

Support the second view is recognized as a scholar, although some of this has been expressed in legal documents, but very vague and hollow and does not have credibility, and the national consensus on this yet, so can not meet the requirements of its universality . Additionally, as a soft law does not have enforceable. Therefore, prior to its being fully accepted, not as a guiding rule as the basis for rulings.

Some Researchers advocate a third view that the precautionary principle is being formed in the basic principles of customary international law, we also hold this view. Specific basis as follows: [9]
First of all, from the perspective of international treaties, "the Vienna Convention on the Protection of the Ozone Layer", "Rio Declaration", "Fish Stocks Agreement", etc., have expressed this principle, but its content is still not uniform, which for the application of this principle will inevitably produce adverse effects. Although customary international law of international treaties is the existence of the authority of the evidence, but not pursuant to the principle of unity would not have invoked the rules for the guidance, or will cause uncertainty in the administration of Justice. Links to Research Papers Download http://www.hi138.com
Secondly, from the international jurisprudence, the principle for the application of the present includes the following cases: "MOX fuel plant case" and "Southern Bluefin Tuna Case", "New Zealand v. France Nuclear Tests", "Beef Hormones" "Hungary v. 捷克盖巴科斯夫 - Shimano Lackey Dam case." These cases are not directly described as "precautionary principle", and most described as "prudent and cautious (prudence and caution)" or "risk prevention methods (approach)" [10].

Finally, national legislation and practice, the formation of international custom and the need for a sufficient number of countries with uniformity and consistency of practice, which does not require all countries around the world there are so practical, but at least part of the country should with such practice. [11] Germany and Switzerland is the first conducted on the provisions of the precautionary principle, then, Australia and the United States and other countries which make the relevant provisions of the judicial practice of countries also shows that the principle of the majority of the court is being used as the basis for the referee.

Thus, to some extent the precautionary principle has had the basic principles of customary international law requirements, but has not yet reached consensus on the causes directly attributable to its fundamental principles of customary international law is too hasty, and its also Some countries still need a place is not perfect unity, so its recognized as the emerging fundamental principles of customary international law the most reasonable.


IV. Developing countries under the precautionary principle in the "dilemma"
the face of it, the precautionary principle is no doubt play a preventive role, reducing the likelihood of some risk. However, since the principle uncertainty in the application of other relevant factors that may cause adverse international environment in developing countries, developed countries would therefore suffer repression. Mainly for:
First, scientific uncertainty as an excuse. Because the limited nature of human cognition, for the society every thing possible to achieve complete understanding of the uncertainty out of our lives can not completely disappear, and the uncertainty of subjective judgments. The decision for the future, regardless of their size, often had to make a case of lack of certainty. Wait until the total elimination of uncertainty before a decision is actually the implicit support of the status quo. Or an excuse for maintaining the status quo. The precautionary principle may become an excuse for this. Additionally, developing countries, financial and material resources are not comparable with developing countries, so the principle of the developed countries is likely to become an excuse to stop the implementation of certain measures.


Second, trade protectionism and breeding. In international trade, as developed countries set high barriers, developing countries have been in a relatively disadvantageous position. If combined with the abuse of the precautionary principle, exports of developing countries will inevitably have an extremely negative impact. Hormones in the WTO case, the United States believes that the EU has a tendency to stop foreign imports, the EU banned beef imports due to cattle feed is based on concerns about hormone levels, and this fear and lack of adequate scientific basis. Whether human, financial, and material are so strong that the United States are faced with trade barriers, then the voice in the international community and how smaller developing countries do compete for their seats? Some advocates in order to avoid damage to the environment, even if they are accused of the expense of trade protectionism. However, trade protectionism dressed in green coat there is a greater potential risk, because it undermines the foundation of environmental risk assessment system. If the reason for the neglect of the economy based on the precautionary principle related to the scientific conclusion, then the full sense of the distance of trade protectionism not be far behind.

Third, risk prevention may bring new risks. The purpose of the establishment of the precautionary principle is to avoid risks, can, ironically, sometimes the application of risk prevention measures to prevent the implementation of related but will result in greater risk. Related industries in developing countries to develop their own measures of risk prevention can be developed it as an excuse to stop its operation, the potential risks are avoided, can the developing countries is subjected to the risk of loss may be even more than the implementation of the measures huge. The best example is the construction of nuclear power plants. Despite a well-run nuclear power plants to nuclear power plants that are designed to improve the safety factor of the Research supported; However, the possibility of a dangerous nuclear power plants or uncertain, so that the potential danger was sufficient to enable us to take measures to stop the operation of nuclear power plants. Thus, the risk of nuclear power plants are eliminated, there can be replaced by thermal power plants may cause more dangerous situation. Preventive measures themselves may generate new risks, as one scholar said, "There is no zero risk in the lunch." The precautionary principle is also intended to address those risks may hinder the Research work carried out, because, according to the precautionary principle, if the first failed experiment meant to give up. [12]

five. Eco Civilization in China, how to deal with the precautionary principle
recent years, China has been under the call of Civilization, the Development of the green with our economy, under the guidance of the green GDP Yibubuxiang developed countries to move closer. In under the banner of the precautionary principle, but also on a higher ecological Civilization construction requirements. In short, ecological Civilization is to overcome the drawbacks of industrial Civilization, to explore resource-saving and environment-friendly Development path of the process. Because of a huge population base and economies of scale, even if the end use of various control measures, it is difficult to avoid serious environmental impacts. Therefore, the introduction of the precautionary principle in a timely manner is no doubt that environmental protection and economic Development have a tremendous impact. Additionally, the international community as a member of the leading countries of the developing countries, in many treaties to elaborate on the precautionary principle on the premise that China can not avoid to be confronted with how to deal with this problem.

As noted above complaints, the precautionary principle in the face of the developing countries at a comparative disadvantage, to a great extent overcome these disadvantages, developing countries have put forward to each new test. Specific countermeasures mainly includes the following aspects:
1. Improve the risk assessment system. Compete with the big countries in the international environment, led by the nose if the great powers always will inevitably become a victim of that principle. Therefore, the continuous Development of technology to establish their own assessment model for developing countries as necessary for each task. The only way to tell from a scientific point of power, I have implemented each of the measures are scientifically based, will not reach above the corresponding risk threshold. In the international community, developed countries are always the scientific authority by virtue of their position to tell you what is good and what is bad, but this is often the big powers are pursuing their policies put legitimacy. As the greenhouse effect is a hot discussion, what is the big countries or the implementation of such tricks have always been great powers at the final say. Therefore, to establish their own evaluation system, and improve their science and technology, continue to fight for their right to speak, for the benefit of their country.

2. Comprehensive consideration of cost - benefit analysis. In an activity whether it is necessary to take preventive measures assessment, must take into account the benefits of the activity, or the prohibition of the risks of the activity. So before making specific decisions for each, should be social, economic factors considered, the constant use of new scientific ideas to be considered on their own decision to make in response to refute the developed countries occupy a more powerful position . Thus, by cost-benefit analysis, and enhance the manager's responsibility, but also enhanced the transparency of the management process, making the precautionary principle in decision-making more scientific and rational.

3. Active participation in international affairs, and strive to contribute to help the developing countries of the treaty-making. In the international community, developing countries are in a relatively passive position, the developed countries are always in the "game rules" formulated by the location, resulting in the interests of developing countries are often ignored. For the precautionary principle in the specific rules applicable to determine the model has not been formed before the end of each cause of developing countries should strive towards developing an environment conducive to the interests of the developing countries the treaty, so in the future handling of relevant cases , developing countries can also enjoy a certain right to speak. Of course, China is no exception in this, as the leader of developing countries, China should play a positive role, for their own personal interests, but also to the majority of his colleagues, work in international affairs, the fight for the unity of the precautionary principle understanding of the formation process play a positive effect, in favor of the developing countries committed to the development of the treaty.

Although the risk of the precautionary principle and the continuous development of the theory is sound in, but at present the full definition of the precautionary principle, the suitable conditions, and even legal status have yet to form a unified understanding, but can not be used as an excuse to impede the development process. On the contrary, precisely because of this, every country should actively join, together to the introduction of standardized documents, make sure its legal status. In particular, today, unknown life, more and more risks have become more and more potential, the precautionary principle has its advantages highlighted the role of, so for a unified understanding of their formation should be as soon as possible, so in international affairs resolve to play a more active role. In this process, the developing countries should join hands together, running in the road on the principle of continuous improvement and continuous access to their own legitimate interests and work hard. China, a rapidly developing country, we must play the leading role of its powers, the establishment of the precautionary principle in the process should show their "power."