THE THIRD LEG IN THE STRATEGY “TRIPOD”'



The Third Leg In The Strategy “Tripod”

The Third Leg In The Strategy “Tripod”

Introduction

Not always is it easy to strike a proper balance between the parallel goals of writing concisely and writing clearly. It is submitted in this respect that for present purposes at least, it is best to err on the side of clarity. At the risk of stating the obvious, therefore, a feature of Principle 15 of the Rio Declaration and similarly drafted provisions will be briefly dwelt upon here that might seem selfevident to many, but maybe not all readers.(Rubin,2000) When it is stipulated that scientific uncertainty shall not be used as a reason for 'postponing' measures to protect the environment, this prohibition logically comprises the situation where measures are not merely delayed but just not taken at all. The French Code Rural, for example, sets out that the absence of certainty “ought not to delay” (Wang,2007)

The Reach of the Precautionary Principle

Delphi, to stick with the Apollonian analogy, marked the navel of the world. When Zeus released two eagles, one from the west and one from the east, they met at Delphi. Apollo's gaze reached everywhere and his powers were very comprehensive. His lyre music charmed “the gods, the wild beasts, and even the stones.” Whether the precautionary principle is to be considered the navel of international environmental law remains to be seen, although a thing or two could be said in favour of this position.18 In any case, with the powers of Apollo the principle has in common that its reach is apparently very wide indeed. How wide exactly is the subject matter of this paragraph.

It was already established above that the reach of the precautionary principle encompasses all types of uncertainty, regardless the classification used. To summarize, the principle covers cases of epistemological and ontological uncertainty alike, and applies equally to quantifiable risks, uncertainty proper and ignorance.19 This paragraph concerns a different dimension of the principle's scope. For present purposes the enquiry 'where?' is made up of at least four component questions concerning the application of the precautionary principle, which will be treated consecutively:

To what states;

To what geographic areas;

To what environmental issue areas; and

To what plans, activities, products and technologies does the principle apply?

What Geographic Areas?

The first sentence of Principle 15 of the Rio Declaration states: “In order to protect the environment, the precautionary approach shall be widely applied by States [..].”24 It does not read “the environment of other states or of areas beyond the limits of national jurisdiction”, as do, for instance, Principle 2 of the same Declaration and Principle 21 of the Stockholm Declaration.25 The latter provisions in a way represent the traditional approach of public international law with its predominant focus on the demarcation of the respective competences of states and the duty not to interfere in the affairs of other states. In the environmental, as in other fields such as human rights this approach is gradually giving way to a focus on global cooperation ...