THE PRECAUTIONARY PRINCIPLE PROJECT
ONLINE CONSULTATION
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From: Ronald Orenstein
Affiliation: Consultant, Humane Society International; Project Director, International Wildlife Coalition
Remote Name: cpe000d56aca7cd-cm014370023468.cpe.net.cable.rogers.com
Time: 03:46:21 +0100
I welcome the opportunity to make comments on the draft guidance. I would like to make it very clear that the following comments are very much my own opinion, and not necessarily those of either of the organizations I represent. I have my own views on precaution, shaped through my twenty years’ experience with the CITES treaty. However, I have tried to put myself, as far as I can, into the position of someone who receives this document for the first time and may be required to understand it, and to act on it. I realize that the draft guidance has arisen out of previous policy papers, and is meant to be accompanied by a number of case studies. However, it should be a stand-alone document; it may well be the only text on this matter that many policy makers may read. It should be clear, concise, practical, self-contained, action-oriented and impartial. As presently drafted, it is none of these things.
The document suffers at the start from a lack of a clear statement indicating what it is for, to whom it is addressed and how it is to be used. It also suffers from the absence of definitions of its principal terms. The guidance should make clear exactly what the precautionary principle is, or at least what the drafters consider it to be. There are, of course, a number of differing formulations of the principle, including the one in the Rio Declaration; is the guidance meant to apply to one in particular?
Of more concern is the use of the confusing term “precautionary measure”. The precautionary principle, in whatever formulation, is a tool for choosing among a variety of management, conservation or legal measures. None of these options is “precautionary” in itself; each can only be more or less precautionary than the other available choices (including inaction). What is precautionary is not the measure, but the choice (perhaps the term “precautionary choice” might be preferable). Consider, as a fairly simple example, a CITES proposal to list a previously unlisted species on Appendix I. Parties may face at least three choices: listing on Appendix I; amending the proposal to place the species on Appendix II, with or without a substantive annotation; or rejection, with or without some additional measure (such as a CITES-sponsored management workshop). We could have a lengthy debate (and believe me, it’s been done) as to which of these choices was more precautionary. Even if you accept the view (implied in the former Berne Criteria) that the higher the Appendix, the greater the degree of precaution, that still leaves the question of what, in these guidelines, you would think of a decision to place the species on Appendix II. Would such a choice be a “precautionary measure”? It may be thought of as more precautionary than non-listing, but less precautionary than Appendix I. The guidance does not make it clear if, or when, the precautionary principle should used as the prime guide leading towards a management choice. It continually refers to factors that may lead away from the assumed primary goal (identifying the best option for biodiversity conservation and the avoidance of species loss). When issues such as socioeconomic concerns and human rights issues lead away from the best choice (and I suspect this happens far less often than some have implied), acting on them is not precautionary. The guidelines should differentiate clearly between choices made on precautionary grounds and those made for other reasons.
The following comments refer to specific portions of the text.
Guideline 1: In the explanatory text, I suggest expanding the sentence beginning “Potential impacts” to read “Potential impacts, INCLUDING SECONDARY IMPACTS, should not be considered negligible...”. Failure to consider such impacts (eg on watershed management, soil erosion or the status of dependant species) may cause considerable problems in future and their potential importance should, in my opinion, be stressed.
Guideline 2: Although I do not doubt the importance of this point, I am not sure that it applies any more to the application of the precautionary principle than to any other aspect of wildlife management or biodiversity conservation. This and some of the succeeding guidelines (eg 7 and 8) seem to have little to do with precaution specifically; instead, they are general, “motherhood” statements applying to conservation practice in general. The guidance could be considerably shortened, and its specific relevance to the precautionary principle intensified, if these were grouped into a single shortened paragraph, perhaps headed with wording like “Application of the precautionary principle, as with other aspects of good conservation practice, should.....”.
Guideline 4: Socioeconomic aspects relate to the use of the precautionary principle only insofar as they affect the choice of the best alternative for conservation purposes; otherwise including them runs counter to the use of precaution. This difference should be clearly stated. Some instruments that use precaution, notably CITES, operate under specific sets of rules and criteria that may prevent the consideration of socioeconomic factors where these run counter to best conservation choices. I would therefore reword this guideline to read “....including the bearing of ecological and, where relevant or allowed, socioeconomic factors on the selection of the most precautionary choice for biodiversity conservation.....”
Guideline 5: In the last sentence of the explanation I assume “harm resources” should read “harm to resources”. I would be inclined also to change “different” to “available” to clarify that some alternatives may not apply to the circumstances (eg to the instrument being implemented).
Guideline 6: I believe that the last sentence of the explanation, after the word “however”, is so important that it should be included as part of the guideline itself. It is crucial that those who seek to promote consumptive activities involving high-risk species or ecosystems be held to a high standard of proof; making this crystal clear may help avoid debates about the use of precaution with respect to, for example, Appendix I species under CITES. Considering the economic ability of those providing information risks running counter to precaution, especially if weaker economic forces are supporting less precautionary options; ideally the cost of securing information from interested parties should not bear on the nature of the information sought or bias the resulting choice. I agree with those commentators who have suggested that seeking better information may be a necessary part of the precautionary process, though it should not delay necessary action. I therefore fully agree with the last sentence in paragraph 2.
Guideline 7: This is, in part, a “motherhood” statement better included, if at all, as part of a general principle on best practice; surely all conservation decision-making should be based on the best information available! Explicit recognition of uncertainty is rather obvious in a precautionary context; the principle does not even apply if there is no uncertainty. It would be more useful to identify specific areas of uncertainty, so that they can be dealt with specifically. Though traditional and indigenous knowledge should certainly be considered, its accuracy (as for any other type of information) must also be judged. The depth of indigenous knowledge about biodiversity varies widely, and standards by which outsiders can assess it are few. I would therefore add the words “and reliable” to the statement of the guideline, if this section is to be retained at all.
Guideline 8: Again, this guideline applies to much more than the use of the precautionary principle, and its usefulness in guidelines directed specifically to that principle is questionable. Further, since the guidelines should assist decision-makers in determining the most precautionary course of action, the question of who decides should relate specifically to completeness of information and transparency in the decision-making process. There is a difference between applying the precautionary principle to determine a course of action, and deciding whether that course of action, once determined, is the best one to follow - a difference this guideline, and others here, do not make clear. The explanation is too narrow in its reference to “exclusion from access to or use of biological resources”. In many cases it may be more likely that the choice is not between use and non-use, or access vs. non-access, but among various kinds of use or varying degrees of access. Further, it may simply be impossible, however desirable, to include local communities at all stages of decision-making (for example, at a CITES COP), and urgently needed decisions should not be delayed because of this providing they are made in an open and transparent way.
Guideline 9: This principle, whatever its validity, has nothing to do with the making of precautionary choices beyond the points already made in Guidelines 4 and 5. Further, the explanation appears to assume that making such choices invariably involves pressure by “pro-precautionary” forces on poorer groups, and that the impacts on such groups are always going to be negative. In fact, powerful forces seeking to exploit resources, often unsustainably, may also bring considerable pressure to bear on poorer interests, including governments, to support their objectives. For example, the issue of food resources has been used in highly specious arguments in favour of high-seas commercial whaling. Further, making precautionary choices may actually benefit local communities, by preserving and protecting resources from outside exploitation so that they may be used in alternate, traditional and sustainable ways. This guideline, therefore, is seriously biased. It does not deal with the use of the precautionary principle, but, effectively, with its rejection. If it cannot be thoroughly rewritten, it should be deleted.
Guideline 10: It is not at all clear what this guideline means. As I pointed out above, there can be no such thing as a “precautionary measure” without reference to a process of choice among alternatives. Does this guideline, therefore, refer to burden of proof? If so, it is repetitious and unnecessary. Are costs to be considered in the light of determining the likely best option for conservation (in which case their consideration is clearly part of precautionary decision-making), or in determining whether economic concerns should outweigh conservation ones (in which case it is not)? The last sentence is highly loaded: what is meant by “stringent” measures or “trivial” conservation benefits?
Guideline 11: The term “adaptive management” is a controversial one whose meaning in a precautionary context is often unclear. If it is intended to mean that a precautionary choice, once made, should be subject to monitoring and future adjustment based on experience and new information, then this point is already covered in more general terms by Guideline 12, rendering Guideline 11 redundant. If it is used as a rationale for making non-precautionary choices for (for example) economic or social reasons, on the grounds that the effect of such choices can be controlled and regulated (both questionable assumptions) and therefore the risk they pose is minimal, then this guideline becomes, like several others here, a rationale for abandoning the precautionary principle rather than using it. Certainly the use of wording like “can often be effectively implemented” rather than “may in some situations be effectively implemented”, or “it will be more effective” rather than “it may be more effective”, seem to be intended to bias decision-making in favour of such an approach. This is despite the fact that in the CITES context at least “adaptive management” arguments have been rejected by the Parties on several occasions on the grounds that they were insufficiently precautionary. This guideline should be deleted.
Guideline 13: This guideline, almost more than any other, is not about applying precaution but about, potentially, disregarding or minimizing the application of the principle in favour of other concerns. I am not, here or elsewhere, disputing the importance of these concerns; but confusing their application with the application of the precautionary principle obscures the fact that, in some (one hopes, few) circumstances, they may lead to decisions that are not in the best interests of biodiversity conservation. The failure to make this distinction, in its turn, obscures some basic philosophical and practical questions of great importance. For example, do human food rights supersede the need to avoid species loss? Is the answer to this question different if we are considering short-term rather than long-term food shortages? In short, this guideline illustrates what I believe to be a fundamental shortcoming of the guidance as a whole: the failure to clarify the goal of the precautionary principle and its application, coupled with the failure to distinguish between questions about how to apply the precautionary principle (for instance, how to assess uncertainty and risk in making precautionary choices) from those addressing the broader issue of the place of precaution in the decision-making process. This failing, is, to me, crucial given frequent failures to understand the precautionary principle and distortions, deliberate or otherwise, of its meaning and effect (often by those seeking to eliminate it or greatly minimize its use).
In short, I believe the guidance requires thorough rethinking and rewriting before it can be considered useful and acceptable. My comments are, however, intended to be constructive. I will be most interested to see any response (though, as I am traveling, I may not be able to reply immediately).
For those of you still reading - many thanks for your attention! Dr. Ronald Orenstein 1825 Shady Creek Court Mississauga, Ontario Canada L5L 3W2 (905) 820-7886 (905) 569-0116 fax ron.orenstein@rogers.com
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