DRAFT GUIDANCE ON BEST-PRACTICE IN APPLYING THE PRECAUTIONARY PRINCIPLE IN CONSERVATION AND MANAGEMENT OF BIODIVERSITY AND BIOLOGICAL RESOURCES
NB: This first draft of the best-practice guidance is relevant only to understanding the comments made in the Precautionary Principle Project's e-conference, held in June 2005. This was the version available to conference participants at the time but has been heavily revised since. This document is now outdated and should not be considered as an output of the Precautionary Principle Project. A final version of the guidance will be available shortly.
1. Regulation, policy and management should seek to anticipate, prevent and mitigate environmental threats, including uncertain ones. The precautionary principle is a useful tool to achieve this, if appropriately and effectively implemented.
The uncertainty surrounding potential environmental threats has been, and is, frequently used as a reason not to take action to protect the environment, particularly when powerful economic interests benefit from the activities threatening the environment. Frequently however it is not possible to have clear scientific evidence of threat before the damaging activity takes place. Common to all definitions of the precautionary principle is the recognition that complete certainty regarding an environmental harm should not be a prerequisite for taking action to avert it. Potential impacts should not be considered negligible or unimportant until shown otherwise. The precautionary principle can be a powerful policy tool to confront the use of uncertainty or incomplete information as justification for not taking action to protect the environment. The principle should guide a constructive search for alternatives and practical solutions, and support positive measures to anticipate, prevent and mitigate environmental threats.
2. The precautionary principle should be integrated into appropriate institutional and policy frameworks for conservation and management of biodiversity and biological resources
Effective application of the precautionary principle will typically require a supportive legal, policy, institutional, administrative, procedural or technical framework. Where these are lacking, such as where there are weaknesses in governance, low capacity, or lack of inter-institutional coordination, it may be difficult to apply the precautionary principle, or precautionary decisions may have little on-the-ground impact. Appropriate institutional and policy frameworks should address the interlinked environmental, social and economic aspects of conservation threats.
3. Application and implementation of the precautionary principle is highly context-specific. The precautionary principle will typically be more effective when translated into specific operational measures and/or outcome standards in specific sectors, contexts, or with respect to specific conservation or management problems.
The precautionary principle, as a general legal “principle” is a guide for action; it is not a “rule” specifying that a particular decision should be made or outcome should be reached. The specific decisions and management or policy measures that it supports will vary widely according to circumstances. While it is important for the precautionary principle to be incorporated into law and policy, to have conservation impact it will typically require translation into concrete policy and management measures that address the conservation problem and specify actions to be taken in specific contexts. Without these, incorporation of the principle in law or policy may have little influence on practice.
4. The uncertainties surrounding conservation threats should be considered in a comprehensive manner, including both ecological and socio-economic aspects. Where precautionary measures are taken, the particular uncertainties they respond to should be specified.
Conservation and management of biodiversity and biological resources is affected by a wide range of factors, both those relating to the underlying biological/ecological system and those relating to human use and impact. Threats to biodiversity and sustainable resource management cannot therefore not be specified solely in terms of biology and ecology, but are linked with and driven by broader socio-economic factors, such as the behaviour of users and other actors; markets and political dynamics, and enforcement and management effectiveness. Uncertainty may surround each of these and their impact on conservation and management. Prediction and assessment of many conservation threats will therefore require understanding and evaluation of the socio-economic and political context of decision-making and management, as well as of underlying biological and ecological factors.
5. In the process of applying the precautionary principle, the likely consequences of alternative courses of action and inaction should be examined
Conservation threats are typically inter-related, and action against one is likely to affect another. Often conservation and natural resource management decisions involve a choice between “risk and risk” rather than between “risk and caution”. Threats may be of different sorts and may be spread over different time-scales. Individual threats should not be addressed in isolation. Rather, the application of precaution to avert or mitigate potential harm resources should take into the account the various conservation benefits and threats raised by different courses of action and inaction.
6. The burden and standard of proof should be appropriately determined
Regulation or management of uncertain environmental threats may require consideration of: which parties should bear the burden of proof and associated costs; what the appropriate standard of proof should be; and liability for environmental damage if the threat eventuates.
The burden of proof should generally be borne by the party in better circumstances to provide information, and in this respect the economic ability of the parties should be considered. Where relatively powerful interests propose potentially damaging activities, they should usually bear the burden of proof. Where poorer or less powerful groups rely on activities which pose potential conservation risks, it may be inequitable to place the burden of proof on them. While applying the precautionary principle may place the burden of proof on one party, all stakeholders have a shared responsibility to act transparently and in good faith in assessing evidence of possible harm.
The standard of proof is the level of assurance required that an activity will not be harmful. It should be recognised that it is impossible to prove that an activity is completely safe. However, the more serious the potential threat, the higher the standard of proof that should be met.
7. Decision-making based on the precautionary principle should be based on the best information available, according to resources available, and should take into account traditional and indigenous knowledge where relevant.
Application of the precautionary principle should be based on examination of the best information available, and on explicit recognition of uncertainties and gaps in information. In addition to any formal scientific information available, traditional and indigenous knowledge may also be very important in many situations of conservation/NRM decision-making and where relevant should be taken into account in decision-making.
In conservation and natural resource management, particularly in developing countries, decisions will typically have to be made in the face of considerable uncertainty – it is unrealistic to expect certainty about threats or impacts of decisions before making them. However, usually some information is available, and decision-makers should be wary of applying the precautionary principle where there is no evidence whatsoever of a threat.
Assessing and analysing uncertain threats requires transparent scientific institutions and practice.
8. Stakeholders should be involved in decision-making on uncertain environmental threats, particularly those who may be affected by environmental degradation, and less powerful groups who may bear costs of precautionary action
Precautionary decision making involves making decisions that cannot be unequivocally justified by available information, as decisions must be made in the face of uncertainty and inadequate or incomplete information. This means that judgements, values, and subjective perceptions of risk, threat, and required action must necessarily play a role in decision-making. The question of “who decides” is therefore extremely important. Typically, different groups have very different perceptions of what constitutes a threat, the seriousness of threat, the role of the precautionary principle and the level of environmental risk they are willing to take. As such it is important for reasons of equity as well as effectiveness to include stakeholders throughout decision-making involving the precautionary principle. These include in particular those who bear the costs of the possible environmental harm, and less powerful groups who may bear costs of precautionary action, such as exclusion from access to or use of biological resources. Indigenous peoples and local communities often play a very important role in natural resource management and, where relevant, should be included. It should be ensured that they have opportunities and facilities to effectively represent themselves and their interests, and this is not precluded by logistic, technical or language barriers.
9. The distributional impacts and socio-economic feasibility of precautionary decisions should be taken into account in decision-making
In practice, use of the precautionary principle is often highly inconsistent and reflects power relations between groups, with poorer or marginal groups often bearing the burden of precautionary restrictions, but precaution being ignored by, or not imposed on, more powerful groups. When applying and implementing the precautionary principle, attention should be directed to the socio-economic costs and benefits for different groups and the distributional consequences. Precautionary conservation interventions can have positive or negative impacts on poor or politically disempowered people. Where conservation threats are responded to by restricting or prohibiting access to and utilisation of biological resources, this may have negative impacts on livelihoods of poor people. Threats to biodiversity and biological resources may need to be weighed against threats to livelihoods and food security, or resources may need to be invested in compensation or support for alternative livelihoods.
10. Precautionary measures taken should be proportionate to the potential threats
A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs (inter alia financial, livelihood and opportunity costs) and the seriousness of the potential threat. It would be disproportionate, for instance, to adopt highly stringent, restrictive and costly precautionary measures against a trivial conservation threat.
11. The precautionary principle can often be effectively implemented through an adaptive management approach to conservation and management of biodiversity and biological resources.
Applying the precautionary principle will sometimes require strict prohibition of activities. This is particularly likely in situations where urgent measures are required to avert imminent threats, where the threatened damage is likely to be immediately irreversible (such as the spread of an invasive species), where particularly vulnerable species or ecosystems are concerned, and where other measures are likely to be ineffective. This situation is often the result of a failure to apply more moderate precautionary measures at an early stage.
However, in many cases it will be more effective to manage potential threats through adaptive management. Adaptive management is an approach to managing resources under uncertainty and inadequate/incomplete information. It does not require having a high level of certainty of the impact of management measures before taking action, but involves taking management measures in the face of uncertainty, as part of a rigorously planned and controlled trial, with careful monitoring and periodic review to provide feedback, and amendment of decisions in the light of new information.
12. Wherever resources allow, application of the precautionary principle should be accompanied by monitoring and efforts to reduce uncertainties. The regulatory/management action should be regularly reviewed to allow modification in the light of new information.
As precautionary measures are taken in the face of uncertainty and inadequate evidence surrounding potential threats to the environment, their application should be accompanied by monitoring and regular review, both to examine whether knowledge and understanding of the threat has increased, and to examine the effectiveness of the precautionary measure in addressing the threat. Any new information gained through monitoring and further research/information-gathering can then be fed back to inform further management and decision-making. In some cases this may lead to the precautionary measure no longer being needed, while in some cases it may lead to more stringent measures.
13. The precautionary principle should be applied in conjunction with other relevant principles and rights
The precautionary principle has close linkages with other principles and rights that may be relevant to responding to uncertain threats to biodiversity and biological resources. These include the principles of prevention, liability for environmental damage, and inter-generational and intra-generational equity, and widely recognised rights such as the right to development, the right to a healthy and ecologically balanced environment, and human rights to food and shelter. In specific decisions the precautionary principle may weigh in the same or in different directions as these other principles and rights. Application of the precautionary principle must respect human rights. In case of conflicts between the precautionary principle and any of these other principles, the effects of the application will need to be analysed in order to reach a balanced solution.