THE PRECAUTIONARY PRINCIPLE PROJECT
ONLINE CONSULTATION
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From: Stas Burgiel
Affiliation: Defenders of
Wildlife, USA
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NB: This comment was received as an email, a few hours after the conference was closed, and was posted by the moderators
I’d like to start by thanking the organizers for initiating this dialogue and opening it up for comments. I appreciate the work that has been put into this to date, and don’t envy the future process of trying to reconcile all of these loose ends. I presume the present discussion is focused on conceptual issues and thereby will refrain from more detailed word-smithing. The following note contains a few general remarks about the guidance on the precautionary principle (PP) as a whole and then some more specific comments on some of the guidelines.
Regards,
Stas Burgiel
General Remarks
Within these guidelines are a number of assumptions (sometimes implicit and sometimes explicit). As others have noted a chapeau could help to make these more transparent and focus the guidance. Otherwise the guidelines run the risk of trying to be all things to all people working in the field of biodiversity conservation/management, which if not impossible, will certainly be difficult.
Application: Debates over the PP in this field seem to derive from two general sources: 1) misapplication; and 2) non-application. The guidelines seem to address the former in more detail than the latter, which should be acknowledged and/or appropriately balanced.
Power Dynamics: Problems with the application of the PP (both cases listed under ‘application’ above) may involve imbalances of power between actors, which the guidelines address (see 1, 6, 8, 9). While a valid consideration, I think it is dangerous for guidance on the PP to try to explicitly assess and/or compensate for power differentials that stem from political or socio-economic conditions and not from the concept of the PP itself. Power is obviously a relative concept and a slippery term to apply in any direct context. While I would prefer that terminology on “power” be removed, I would note that in light of the slight bias addressed above towards mis-application of the PP there is little extended discussion of the power of economic/political interests to prevent application of the PP (indirectly addressed in 1 and 9).
Scale/Context: Given the broad scope of “conservation and management of biodiversity and biological resources,” these guidelines would seemingly apply to the full range of geo-political levels: international (CBD, CITES, WTO); national (domestic legislation, judicial decisions) and local (parks, species management). The political and economic concerns as well as the power dynamics at these levels are all very different. While I haven’t fully considered the applicability of the guidelines in all of these contexts, it’s important to make sure that the guidelines are relevant and appropriate to all (e.g., do they accord with international law and obligations).
Specific Comments:
2 - Integration into Institutional and Policy Frameworks: The guideline states that lack of capacity in governance, enforcement or coordination may be obstacles to the effective implementation of the PP. It should also be stated that such problems should not serve as reason not to apply the PP, but that efforts should be made to address and overcome such barriers.
4 - Uncertainties around Conservation Threats (Ecological & Socio-economic): I presume that this is a statement of the obvious as most threats to biodiversity being considered in light of the PP are ultimately socio-economic at their root (e.g., increased trade in GMOs, poaching, deforestation, pollution). While it is reasonable to identify the general area of uncertainty (e.g., an invasive alien species might enter the country on a particular good), uncertainty by its very nature implies that the “specifics” (however defined) may not be available. Such considerations about threats to biodiversity are very different than saying that socio-economic variables are to be considered in whether lack of scientific certainty should be used as a justification for actions to protect biodiversity. It might be useful to make sure that this is not what the guideline intends to state.
5 - Consequences of Alternative Courses of Action/Inaction: As others have stated, this guideline should consider available courses of action, while recognizing that there may also be degrees of uncertainty in their implementation. Such considerations, while necessary, should not serve as an excuse or cover for inaction if measures are deemed necessary in the initial consideration of the PP.
6 - Burden of Proof: This is one guideline where I think that divisions between more and less powerful is difficult given the high variability of potential scenarios (e.g., construction of a large hydro-electric facility by a multinational; an import ban on widely traded ornamental, yet potentially invasive, plants that are important sources of revenue for small nurseries; a ban on the trade or culling of particular species that are of importance to local communities). Regardless of where the burden of proof is placed, the burden should not be reversed (i.e., shifting from proof that action X will not harm the environment to proof that action X will harm the environment) as that is antithetical to the principle.
Additionally, the guideline discusses burden of proof and standard of proof in some depth, while not elaborating on liability which is also referenced in the first line.
8 - Stakeholder Involvement in Decision-making: This guideline also clearly involves power dynamics, which are not unique to the application of the PP (e.g., how do you define/identify stakeholders, how do you balance powerful economic interests against small communities with issues of access to and understanding of decision-making processes). I think transparency and possibly some form of educational component is important for participatory processes and the eventual decision-making.
9 Distributional Impacts and Socio-economic Feasibility / 13 Other Relevant Rights and Principles: These two guidelines get to the heart of recent debates over the PP; that is whether and how it should relate to human livelihoods and/or rights. Or more specifically, could the possibility of negative socio-economic impacts could forestall the use of the PP to protect a biological resource? In some senses the PP was developed for this very particular case as a means to protect the intangible rights of the environment vis-à-vis human actions that have and continue to harm it. This is not to say that distributional impacts shouldn’t be identified and addressed by other forms of support or compensation where appropriate after the decision to take a precautionary action has been taken.
10 - Precautionary Measures Proportionate to Potential Threats: As has been noted elsewhere the terminology on “stringent” and “trivial” is value-laden and essentially an issue of perspective. This principle may also run counter to international law and principles of national sovereignty. For example, the WTO and the SPS Agreement allow countries to set their own level of protectiveness above and beyond any existing international standards. Such a guideline could be used to question New Zealand’s preference to regulate vigorously against the introduction of invasive species or for the E.U. to establish strict rules on the traceability of GMOs.
11 - Adaptive Management: As has been noted, the application of adaptive management itself has been very problematic and potentially as controversial as the application of the PP (hence is it worth using one debatable concept to help guide the application of another hotly debated concept?) Any incorporation of adaptive management should not be grounds to justify a less protective or precautionary measure based on the thinking that if threats do evince themselves then more protective action can be taken, as this runs counter to the basis of the PP. Additionally, in many cases adaptive management may not be appropriate, such as with invasive alien species or very low species populations.