The risk of environmental law, the precautionary principle in

[Abstract] the precautionary principle of environmental Law for the prevention of scientific uncertainty environmental risks, protect the important principles of humanity and the environment, since its formation in many international environmental conventions to be used, but also by many countries as a legal principles to be adopted. To guard against the increasingly serious environmental risks, China should establish in their national legislation in due course the precautionary principle, improve the relevant legislation.

[Keywords:] the precautionary principle, environmental risk, environmental Law.

First, the risk of the emergence and Development of the precautionary principle.

(A production of the precautionary principle. Is generally believed that the precautionary principle from the earliest Laws of Federal Republic of Germany Vorsorge ��, the core of the Law society should be through careful advance planning and to prevent potentially harmful behavior to avoid environmental damage.

1976 Federal German Parliament passed the Clean Air Act will be the precautionary principle as a fundamental principle into them, it gives the German policy-makers in the absence of scientific certainty, but fears of irreversible environmental damage, can take risks the right preventive measures. Federal Republic of Germany in dealing with acid rain, global warming and pollution problems on the North Sea often cited to prove the principle of hard-line policies of its legitimacy, and at that time greatly contributed to the German Environmental Protection industry.

(B precautionary principle in international environmental Law in the establishment and Development. Precautionary principle has been proposed, first of all in international environmental law has been gradually recognized and used. From the 20th century, 80's, began to frequent the precautionary principle in some protection environment, international treaties, agreements and declarations. early use of the precautionary principle is expressed in international documents, 1982 <"World ChArter for Nature>>, and in 1987 the second International Conference on Protection of the North Sea Ministerial Declaration adopted it clear that the precautionary principle, namely: "To prevent the North Sea being a dangerous substance may harm prevention approach is necessary, it may request even in the absence of clear scientific evidence to prove the case of causation, we must take action control the emissions of substances. "[1] 1987, <" On ozone-depleting substances and the Montreal Protocol>> for the idea of ​​the establishment and spread of risk prevention is important, at the time the Protocol for CFCs and ozone depletion hydride association There is no exact scientific evidence on the case still provides: PArty "decided to protect the ozone layer, precautionary measures, balance control the release of ozone-depleting substances in the global total."
90s of the 20th century is the precautionary principle and implementation of comprehensive Development of an important stage, it is understood and accepted more countries, more and more areas of its scope and broad concept of sustainable Development and become an important pArt. Some scholars pointed out: the international environment after 1990, almost all the legal documents adopted the precautionary principle. [2] It is worth mentioning that in 1992, the United Nations Conference in Rio de Janeiro Conference on Environment and Development, adopted by the Conference <<Rio Declaration>> recognition of the precautionary principle landmark. <<Rio Declaration>> Article 15 specifically states: "In order to protect the environment, States should according to their capabilities, extensive application of the precautionary measures. In case of serious or irreversible damage, threats not to the lack of full scientific certainty as a reason for postponing cost-effective measures to prevent environmental degradation. "Meanwhile, as the 1992 United Nations Conference on Environment and Development are two important results: <<United Nations Framework Convention on Climate Change>" and " <Convention on Biological Diversity>> precautionary principle is also regarded as an important principle to achieve one of its goals. <<The United Nations Framework Convention on Climate Change>> Article 3, paragraph 3: "The Parties should take precautionary measures, anticipate, prevent or minimize the causes of climate change caused, and mitigate its adverse effects. When there is serious or irreversible damage to the threats should not be used without a full scientific certainty a reason for postponing such measures, while considered to deal with climate change policies and measures should be cost-effective and secure access to the lowest possible cost to global benefits. "<<Convention on Biological Diversity>> also in the preamble that:
"Noting that biodiversity reduction or loss suffered serious threat, not lack of full scientific certainty as a reason for the postponement to take to avoid or minimize such a threat."
2000 <<Cartagena Protocol on Biosafety>> from the Preamble to the specific terms are run through the precautionary principle, clearly stated in its preamble, the biosafety of genetically modified organisms, the international legal protection, the establishment of legal principles in risk prevention above. The fourth paragraph of the preamble to the Protocol reaffirms <<Rio Declaration>> of the tenth five principles, the body of Article 1 provides that "the objectives of the Protocol follows the <" On the Environment and Development, Rio Declaration>> established in Principle 15 of the precautionary approach, to help ensure the safe transfer, handling and use of modern biotechnology that may have on biodiversity conservation and sustainable use of living modified organisms that adversely affect the area to take full protection measures, taking also into account risks to human health and specifically focusing on transboundary movements. "
In summary, the precautionary principle itself since the 20th century have been 80 years rapid development, and expanded to include the protection of the ozone layer, climate change, toxic and hazardous waste treatment, to prevent water pollution and air pollution, bio-security, environment protection all areas of international environmental law is an important principle.

(Three risk precautionary principle in national domestic law the establishment and development. International environmental law established the principle of risk prevention reflects the international community consensus on the issue of Environmental Protection, national environmental law guiding the formulation and revision of guidelines play an important role. some of the more advanced countries Environmental Protection laws in its domestic law, the precautionary principle be adopted as a principle of law to guard against environmental risks. For example, in the constitutional level, in February 2005 the French Parliament passed the Constitution precautionary principle endorsed the amendment. Basic level in the environment, Canada, revised in 1999 <<Environmental Protection Law "> in the preface states that" ... ... the Government of Canada committed to implementing the precautionary principle, once the risk of serious or irreversible damage, lack of full scientific certainty shall not delay the grounds of cost-saving measures to prevent environmental degradation, "clearly the risk prevention and the polluter pays, pollution prevention, protection of the environment and human health, environmental law, the provisions tied to the 4 basic principle. in France set in 1998 <"Environmental Code>> In article 110, paragraph 1, of the precautionary principle, stating that" According to this principle, does not allow the lack of adequate scientific and technological knowledge as an excuse to delay time and thus uncertain , within an acceptable range in fees, not likely to cause significant damage to the environment, can not avoid foreseeable disasters, timely and appropriate control measures. "[3] single in the environment laws and regulations of the level, Germany <<Chemical Substances and Chemicals Act "> Denmark <<chemical substances and chemical products Law"> Sweden <<Chemical Products Act>> and <<chemical emissions regulations>> Various provisions of the guidelines for the prevention and the prevention of environmental risks and the requirements of human health risk among all the provisions into.

Second, the risk of the main elements of the precautionary principle.

(A starting point: the event of an unacceptable risk. Apply the precautionary principle will be the primary problem is that this threat of environmental risks posed by the extent to which only apply. The precautionary principle has a starting point different regulations, some of the more stringent provisions of the launch conditions, including "<Rio Declaration>> requirement is that" where there are threats of serious or irreversible "," <Convention on Biological Diversity>> provides that "a serious reduction or loss threat, "and some started under more relaxed conditions, such as 199 <<Bamako Convention on the>> requirement is" likely to cause harm to humans or the environment ", 2000 <<Cartagena Protocol on Biosafety>> provisions of the "potential adverse effects." Although these provisions vary the standards, but in common is that they are carrying value includes language expressing the degree of acceptable damage to the moral judgments.

Seriousness of the threat of major, irreversible specific criteria for judging what is it?
Environmental legal documents listed above are not directly answer. In fact, the level of economic development, Environmental Protection levels of development and cultural background and many other factors, the world of environmental risk tolerance is different. Therefore, in the environment standards are certainly different, which is bound to the countries directly affect the environmental risk level to determine the seriousness of the threat, the seriousness of the development of a uniform standard is clearly unrealistic. UNESCO, the "precautionary principle" starting point is defined as "morally unacceptable damage", which includes "a threat to human life or health damage, serious and irreparable harm effectively, contemporary or future generations of unfair prejudice, did not fully consider the human rights of those affected and the implementation of the damage. "This national legislators to provide a more authoritative reference.

(B scientific uncertainty. It is not sufficient and reliable scientific evidence.

Prove that the dangerous consequences of a behavior and a causal relationship between. This shows that when scientific causation of damage, size, possibility and nature of the considerable uncertainty, the "precautionary principle" can still play a role. SCIENCES Uncertainty is different from the precautionary principle of Environmental Protection principles of the past, the most obvious features. most of the international environmental treaties and national laws are required to wait until there is no scientific evidence to determine, but at least should have a reasonable basis This shows that the precautionary principle is not based on people's awareness of the risk of anxiety or emotional reasons, but on the basis of rational knowledge, to guide the people are faced with potentially huge environmental risks to make informed decisions. Only the application of the precautionary principle can be built upon sound scientific basis, that some form of scientific analysis is required, and if only a fantasy or a vacuum can not speculate on the application of the precautionary principle cause [4].

(C assessment of costs and benefits. This element of the precautionary principle should apply in means of its general social and economic impact on the cost-effective.

In order to avoid paying for the precautionary principle and the high social costs, the adoption of the international community in the cost-benefit analysis, that the use of the principle of proportionality assessment of risk prevention measures with proportionality: the principle of a risk-based prevention measures, not only need to be developed, but needs to have legal and economic cost is reasonable, and make risk management, risk prevention measures and appropriate links between the [5].

(D appropriate preventive measures adopted. Preventive measures should be selected with the level of protection as well as the relative size of the damage may be that, according to the different levels of risk to take appropriate preventive measures. Commonly used preventive measures include: the prohibition of measures, suspend or delay the measures, the use of best available techniques, best environmental practice, and further Research to find alternatives and gather more information.

Third, on the establishment of the precautionary principle of environmental law thinking (a domestic law of the precautionary principle has not been established because of the limitations of the era, as the environment of the Basic Law of 1989 <<Environmental Protection Law "> only provides for environmental damage "prevention first, combining prevention with control" principle, does not provide for and reflect the precautionary principle. Some scholars believe that the existing environmental law in China, "prevention first, combining prevention with control" principle already contains the spirit of the precautionary principle, not necessary devoted to the precautionary principle again to confirm, but the actual situation this interpretation is inappropriate. because of the time from the legislative point of view, "<Environmental Protection Law"> as early as 1989, was adopted at a time when risk prevention principles are also not into China, so, "<Environmental Protection Law"> the legislative intent can not be contained in the consideration of the doctrine. In addition, the content from the legislative point of view, the precautionary principle, and we usually call "prevention Lord "principle are two different principles, that the former included in the latter, obviously unscientific. So far, the field of environment in China is only implemented in a few precautionary principle, including" <Atmospheric Pollution Prevention Act "> Links to Research Papers Download http://www.hi138.com Article 45 of the control of ozone depleting substances makes provision, in addition to the precautionary principle in other environmental areas is the lack of legislative norms.

(B of the need for the establishment of the precautionary principle 1. Establish the precautionary principle is to prevent the growing risk of the objective needs of the environment. China's reform and opening up to focus only on economic growth, ignoring Environmental Protection, which consume a lot of economic growth is , damage to environmental resources, the cost of environmental pollution, and economic growth is accompanied by unprecedented in China's environmental crisis intensified, a series of environmental problems, and now in China's economic transition, some quick success of the project makes our the phenomenon of environmental pollution and ecological damage worsening poses a major threat to society. [6] Overall, a very serious environmental problems in China, environmental risks become more acute. At present, China Environmental Law with scientific uncertainty for the lack of environmental risk regulation, but the environmental risks of such a special event, will make us pay a high price.

2. Establishing the precautionary principle is to practice the scientific development concept and building a resources-saving and environment friendly society �͹� needs. At present, China will accelerate reform of proposed ecological civilization construction, in-depth implementation of sustainable development strategy, vigorously promote resource-saving and environment-friendly type of social construction and speeding up energy conservation, accelerating pollution control. China's environmental protection into economic growth to protect the environmental optimization of the new phase of historical change, and our current Environmental Protection Law of the basic principles of environmental protection can not be well adapted to the history Turn of the new demand. precautionary principle as a basic principle of environmental protection in China if the law can be established, it will for the entire legal system, the fundamental nature of the environment, the basic content and basic value orientation have important practical significance.

3. To establish the precautionary principle is needed to fulfill its international obligations. Although China has joined the 1992 United Nations <<Rio Declaration on Environment and Development> "and" The <Convention on Biological Diversity>>, but the attitude of domestic legislation point of view, the precautionary principle in the treatment of the issue is more cautious, not be identified as one of the basic principles of environmental law. In order to work with China in foreign relations position on this issue is consistent and to set a world believe that we will keep a responsible major power, China should actively recognize the risks of domestic law and to implement the precautionary principle.

(C precautionary principle to establish the specific recommendations 1. In the environment, the precautionary principle established in the Basic Law as the basic principles of position. From international environmental treaties and the successful experience of foreign legislation, the provisions of the precautionary principle, for the prevention of possible future major environmental damage and promote social and economic importance of sustainable development. At present, China is carrying out the legislature amended <<Environmental Protection Law "> work, we should use this opportunity to establish in our environment, the precautionary principle in the Basic Law, the basic principles of status, and its guidance to environmental legislation, judicial and law enforcement activities. only increased the risk for the environment the precautionary principle recognized by the basic norms of the Basic Law, to enable it to play a coordinating other environmental legislation, environmental justice and environmental guidance to the role of law enforcement in order to make our environmental legal system and construct a comprehensive road system of prevention of significant environmental risk defense.

2. In the important field of environmental protection to actively implement the precautionary principle. Precautionary principle are mainly related to human, animal and plant health fields and bio-security areas, laws and regulations in these areas should be added with the relevant provisions of the precautionary principle or a specific system , for example, China should regulate genetically modified organisms, dangerous chemicals, specialized legal to take risk prevention measures.

3. To establish and improve the precautionary principle and risk-related legal system. The actual implementation of the precautionary principle, in addition to the basic principles of establishing the status of the law also requires specific coordination mechanism and legal system. At present, our law already contains a section with the precautionary principle related to the legal system, such as clean production system, labeling system, licensing system and a certain degree of risk responsibility system and other perpetrators of sexual activity, but these systems need further improvement and development. I propose to enhance the cleaner production system effectiveness of the enforcement, increasing the risk of sexual activity on the perpetrators in the monitoring process to ensure accountability and financial responsibility requirements, the establishment of environmental risk assessment system, improve the environmental impact assessment system.

Note:
�� Vorsorge in German means "thinking ahead and worry."
References:
[1] [Law] Alexander Keith, the. Zhangruo Si, translated. International Environmental Law [M]. Beijing: Law Press, 2000.

[2] [United States] and Sean Thomas Bergen Sol D �� Murphy, the. Lizuo Heng, translated. International law [M]. Beijing: Law Press, 2005.

[3] Zhao Guoqing. Selected foreign environmental law [M]. Beijing: China University of Political Science Press, 2000.

[4] See The United Nations Educational, Scientific and Cul-tural Organization: The Precautionary Principle, published in2005, P13.

[5] M.Montini.The Nature and Function 0f the Necessityand Proportionality Principle in the Trade and Environment Con-text, Review of European Community and International Environ-mental Law, 1997, vol.6.P121-130.

[6] Chen Quansheng. Environmental Law [M]. Xiamen: Xiamen University Press, 2008. Links http://www.hi138.com Research Papers Download