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New Zealand Journal of Environmental Law |
Last Updated: 30 January 2023
Legal and Societal Responses to Threats resulting from
Modern Science and Technology
Robert Goemmel*
Over recent decades almost every aspect of daily life, from mobile phones to nuclear power plants, has developed and changed at an incomparably fast rate. But an unknown risk to the natural environment is posed by our constant attraction to new science and technology. The response to this threat needs to be separated into three different strands. First of all there needs to be a new awareness of how society is responsible for controlling its own “creation”. This new responsibility is often seen as the latest step in environmental ethics. Secondly, further research into the field of ecology is necessary. Ecology has the ability to provide scientific guidance in the future, but only if it is able to eliminate old problems, such as abuse by pseudo-scientists. Last but not least, implementation of the new responsibility (for example, the question of legal instruments) is important. New conventions like Aarhus, Stockholm, and Rio illustrate how society can participate and what legal tools are available. Evaluation of the Prevention and Precautionary Principles, Environmental Impact Assessment (“EIA”), liability and the Polluter Pays Principle, and their implementation, shows that we are on the right path, although there is still a lot of work to be done.
*A paper prepared for Professors Christopher Weeramantry and Klaus Bosselmann in the LLM course International Environmental Law 2009 at The University of Auckland, New Zealand. Email contact: Robert.Goemmel@gmx.de.
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1. INTRODUCTION
The pace of scientific and technological development continues to increase at rapid speed, with no end in sight.1 Innovations since the year 2000 alone illustrate the scale of this breathtaking progress and our growing dependence on science and technology. However, of greater significance than the size of the project is how pervasive the technology in question is within society — a small but widespread technological innovation can cause greater environmental harm than a single large venture. Consequently, a way of handling upcoming challenges and risks posed by such developments has to be found.
It has been argued that science is more often used to produce weapons than to do any good for humankind.2 However, if scientists reach the point of actually understanding a new science or technology and are able to foresee the consequences (good and bad), then it would be wrong to say that we should not make use of the new technology simply because it may have an industrial or military application.3 An often used example is the connection between the atomic bomb and the use of nuclear power. Besides the advantages of nuclear power, it has its downsides, as shown in Hiroshima/Nagasaki or Harrisburg/ Chernobyl, which were devastating both for the environment and humanity. While in many cases new technology supposed to help the environment in fact harms it on a greater scale or creates unforeseeable new hazards,4 positive contributions are also made. For instance, energy-efficiency technology, which helps to reduce daily energy needs.5
To counter the possible negative effects of modern science and technologies, which are becoming increasingly powerful, a new approach is needed. The way the problem has been treated in the past is no longer sufficient to protect the environment and fundamental human values. Therefore, adjustment of the old mechanisms must include all parts of society to gain a functioning new system. To establish the requisite societal control over modern science and technologies, both citizens (as individuals or a collective) and the state must be included in the question of monitoring to establish the exact exercise of responsibility to contain future risks. An ethical reflection on the development of humanity’s
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understanding of science and how ecology can be part of a redefinition of scientific approaches is also necessary.To get a complete picture, the analysis must also include the state as the main actor. This encompasses the state on a global and international level. Due to many international treaties or customary law, the state is bound on an international level. Principles like the Precautionary or Prevention Principle offer new ways to predict and prevent environmental harm. In addition, obligations concerning reactive measures, like the Polluter Pays Principle or a general liability, are imposed by international agreements, to “scare” anyone away from committing environmental harm. Following the overview of alternative possibilities to contain risk and dangers from new technologies and science, a brief look by way of comparison will be taken on the national level, to illustrate the willingness of states to implement such new controlling tools.
2. MODERN SCIENCE AND TECHNOLOGY
To begin with, questions arise concerning definition of terms. Vagueness as to the understanding of what modern science and technology is, what environmental damage means, and how modern science and technology affect the environment must be clarified.
2.1 Definition of Modern Science and Technology
Defining the meaning of the terms “modern science and technology” is a pre- requisite to further discussion of societal control. Only an understanding of what these two terms may mean enables us to set up rules of conduct for a containment of possible dangers.
In most cases science is defined as: “Any system of knowledge that is concerned with the physical world and its phenomena and that entails unbiased observations and systematic experimentation. In general, a science involves a pursuit of knowledge covering general truths or the operations of fundamental laws.”6 Science is fundamental to diagnosing emerging or existing problems, the severity of the problem, and to delivering suitable solutions.7 “Pure” science itself and the results it delivers are supposed to be neutral, but as is known
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from the so-called “tragedy of the commons”, economic interests often prevail over what is best for safeguarding the common good.8 Consequently, science is influenced by many different factors. But this does not necessarily have to be bad, because science sometimes needs to be guided in certain directions— albeit this guidance must be balanced with the objectivity science ought to provide. Thus the integrity of science (no intense, one-sided influence) and involvement of scientists (awareness of the needs of policy-makers) have to be reconciled.9
Technology, on the other hand, is defined differently from the term science: “Technology is the application of scientific knowledge to the practical aims of human life or, as it is sometimes phrased, to the change and manipulation of the human environment.”10 Nevertheless, technology is not only the result of pure scientific implementation, because some technological innovations do not require prior scientific research.11 The building of Galileo’s telescope is an illustration of successful action without a scientific background.12 As a result, the term “technology” must be understood in a broader way, without losing its nuances.13 A possible definition could be “technology is humanity at work”, because the kind of technology which is of concern in the moment is the one created by humans.14 Furthermore, the distinction between invention (creation of new technology), innovation (first use of new technology), and diffusion (follows innovation, others adopt the new technology elsewhere) must be kept in mind, because technical change is a result of all three.15
As shown, science and technology are to a certain extent intertwined, but still have a different bias.16 The risk of defining both terms is that if one definition is too broad it consumes the other, rendering the definition useless.17 Yet the question of a societal control of both fields has to be examined separately. Ideas
(New York: Seven Bridges Press, 2000) 2.
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and safety measures which might work for one, might not work at all for the other. Therefore, societal control measures must be found for both areas.
2.2 Environmental Damage
Next the question of what “environmental damage” means has to be discussed. Two problems arise: first, whether a general definition of environmental damage exists; and second, whether there is a threshold as to when damage is considered to be harmful.
The term “environmental harm” is very broad. To gain a valid definition the different sources of international law must be examined. There have been several attempts to define the term, but so far no generally consistent meaning has been arrived at. However, based on changes to the term “environmental harm” over the years, it might be possible to determine some limits.
One of the first occasions on which modern international law dealt with the question of environmental harm and possible obligations can be dated back to the Trail Smelter Case, from 1938 to 1941.18 The case dealt with the emissions from a Canadian smelter, which wind-borne travelled to the US and caused severe damage to the environment, including persons and their property.19 To resolve this dispute, Canada and the US agreed to the establishment of an Arbitration Tribunal.20 However, the Arbitration Tribunal only dealt with the question of economic harm and did not consider any environmental damage.21 Nevertheless, this perception has changed over the years as various international documents show.22 Newer conventions, like the Stockholm Declaration and the Rio Declaration, lay down an obligation to control damage to the environment (Principle 21 Stockholm and Principle 2 Rio Declaration).23 Further conventions and treaties often deal with very specific fields of the environment, like the United Nations Convention on the Law of the Sea (“UNCLOS”), the Ozone Convention or the Climate Change Convention, but
not with the entire environment.
20 Ibid, at 1911–1913.
& 1931.
23 Ibid, at 184–185.
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Besides the fact that this elucidates there is no general definition for “environmental harm”, a different problem emerges. Till today the problem is that a “material harm” (injury to persons and properties) is needed to consider a possible applicability of “environmental harm”.24 This entails the danger that the “environment” component in the question of “environmental harm” is too narrowly considered, because the environment is reduced to injuries of persons and properties.25 Severe environmental violations, which are not related to “material harm”, cannot be pursued.26 But perceptions of the United Nations Environment Programme (“UNEP”) and the International Law Commission (“ILC”), based on commissioned studies, understand the term environment as broader than merely limited to “material harm”. Furthermore, there are also some treaties which go beyond the requirement of “material harm” by emphasising the environment as a whole entity.27Due to insufficient definitions on an international scale, a closer look at national jurisdictions must be taken. As an example, in the 1993 Environment Protection Act as part of the South Australian Consolidated Acts, it is said in s 5 that “any harm, or potential harm, to the environment” is sufficient. Furthermore, in Germany in § 2(1)(a) of the Environmental Harm Act (Umweltschadensgesetz (“USchadG”)) in association with § 21a(1) Federal Nature Conservation Act (Bundesnaturschutzgesetz (“BNatSchG”)) environmental harm is defined as: “every adverse impact on the preservation or attainment of the favourable condition or maintenance of these habitats or species”. These two examples also illustrate the diversity of possible approaches signified by the use of this term. While the Australian law just generally states “the environment” as a whole, the German law specifically points out certain aspects, opting for a more detailed and definitional approach.
Overall it is striking that there is still an argument about the exact meaning of the term “environmental harm”. Thus, it does not matter on what level of law (international or national) you concentrate. Although some definitions seem to be quite similar at first sight, after a closer examination large differences emerge. However, for the sake of the environment and all laws protecting it, the understanding of the term environmental harm has to be broad. There should
27 Julio Barboza, “Eleventh report on international liability for injurious consequences arising out of acts not prohibited by international law”, in ILC, International liability for injurious consequences arising out of acts not prohibited by international law, UN Doc A/CN 4/486 (Extract from the Yearbook of the International Law Commission, 1995, vol II(1)) 51, 53; Birnie et al, supra note 22, at 186.
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be no restrictions concerning “material harm” requirements. Furthermore, the environment has to be understood as an entity, whose protection must be independent of the violation of single material rights. By narrowing the term down, the whole system would be doomed to fail.
Next, we must examine if there is any kind of threshold to determine “environmental harm”. Looking back to the first time international law dealt with the issue of “environmental harm”, the Trail Smelter Case set up the requirement of a “serious” injury and therefore set the bar very high.28 On the contrary, the ILC talked about an “appreciable” harm at the beginning of 1990,29 meaning “a risk which is not only higher than normal in a human activity but also easily perceptible, or foreseeable”,30 but changed that in 1994 to a “significant” or equivalent harm, which is still used today.31 However, the Stockholm and Rio Declarations did not make any mention of a threshold (according to Principle 21 Stockholm Declaration and Principle 2 Rio Declaration). The argument that a threshold is generally necessary cannot persuade, because this will end up in a balancing of data, which carries the risk that a polluter always tries to adjust the caused harm to the allowed standard.32 Furthermore, it is argued that the Trail Smelter Case is not a strong one to uphold a possible threshold as an international custom.33 The possibility of setting certain standards can only come about if the obligation to prevent harm exists without exception.34
Thus the question if there is a defined threshold to environmental harm remains unclear. The different treaties, conventions, judgments, and state opinions have shown that there is no common ground. However, the only way to obtain a sustainable prevention of environmental harm is to avoid any threshold. A threshold always bears the risk that it is deliberately abused by a polluter and
30 Julio Barboza, “Sixth report on international liability for injurious consequences arising out of acts not prohibited by international law”, in ILC, International liability for injurious consequences arising out of acts not prohibited by international law, UN Doc A/CN 4/428 & Corr.1-4 and Add.1 (Extract from the Yearbook of the International Law Commission, 1990, vol II(1)) 83, 88.
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it therefore becomes useless. The best way to deal with overt inequity is to use the principle of due diligence and adjust the individual case to get a fair, and sustainable, decision. Consequently, the desire for a threshold must be resisted.
3. APPROACHES AND POSSIBILITIES TO CONTROL
Following that brief overview of the definitions of science, technology, and environmental harm, a closer examination of different approaches and possibilities for the control of new technologies has to be taken. These approaches cover everything from environmental ethics and questions of responsibility through to the actions of collectives, the idea of ecology, and preventive and reactive state measures.
3.1 Environmental Ethics
Based on the previous examination it can be seen that there is a need to react towards the dangers and uncertainties arising from the use of new technology and science. The next step it to take a closer look at environmental ethics. As already shown, there has been a shift within the ethical view over the past centuries, due to new developments within science and technology, as well as new approaches in environmental studies.
First of all, the main ethical approaches towards the environment should be analysed. These are anthropocentricism, ecocentrism, and a mixed theory, which rejects both of these possibilities.
(a) Anthropocentrism
At the inception of environmental ethics the overwhelming idea was the human- centred approach, called anthropocentrism.35 Its core statement is that “all value is human and that ethics should therefore have human beings as its principal or even sole focus”.36 Sometimes it is formulated even more drastically, by saying that “‘Man’ never left centre stage, nature has never been, and will never be, recognised as autonomous”.37 There can be no doubt that humans make up a big part of their own ethical beliefs and values, but it would be wrong to think
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that this automatically implies that humans have to be treated exclusively.38 The radical unexceptional understanding of anthropocentrism leads to the “unjustified privileging of human beings, as such, at the expense of other life forms”.39The anthropocentric approach is mainly connected to Christianity.40 Evidence for this is that at “the centre of the traditional Christian story is God becoming man in the figure of Jesus”.41 A similar concept — of God becoming man in the figure of a prophet — is familiar to other world religions like Islam and Buddhism.42 However, because of the great influence of Christianity over the past centuries, the idea of human-centredness spread and infiltrated itself deeply into everyday undertakings (including science and technology).43 But even within Christianity, there were elements which attempted to turn away from pure anthropocentrism, as can be seen by St Francis of Assisi44 who tried to move the understanding of the environment away from human-centredness and towards his belief of “the virtue of humility — not merely for the individual but for man as a species”.45 Consequently, he tried to change mankind’s monarchy over God’s creatures into a democracy of all of God’s creatures.46 However, St Francis did not succeed, and as already shown, mankind’s “arrogance” concerning its position within nature is not the solution to this crisis.47
(b) Ecocentrism
Ecocentrism is characterised by the contemplation of the environment as an organic whole.48 Further subdivisions, such as zoocentrism and biocentrism, result from the fact that ecocentrism covers a broad range of various inter- relationships and therefore acts like a concept or a value.49
One of the major discussions within ecocentrism is the question of whether humans are included or not.50 Despite the understanding of some authors that
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ecocentrism is the complete opposite to anthropocentrism, most commentators are in agreement that ecocentrism has to include all of nature, which also encompasses human beings.51 In contrast to the human-centred approach, ecocentrism recognises “that human beings live in a more-than-human world, of which they are only one part”.52 Sometimes it is even specifically highlighted that humans are an inextricable part of nature.53 By taking the ideas and values of ecocentrism into account, proponents argue, humans would be far better prepared to face upcoming ecological crises.54
(c) Mixed theory
More moderate positions try to combine values from both the anthropocentric and ecocentric approaches.55 One of these suggests that biocentric and anthro- pocentric values should be combined, but with a greater overall emphasis on basic human rights.56
(d) Consideration of ethical approaches
Thus it is possible to see that there is a great variety of different ethical approaches. Furthermore, the whole evolution of the anthropocentric approach is proof that religious and ethical views and beliefs can change and influence humans on the scale of their daily lives.57 Nevertheless, all of these approaches deal with the general matter of environmental ethics. But the possible threat arising out of new technology and science is a more specific danger, which cannot be dealt with on too broad a level. This is shown in the fact that most ethics condemn dangers out of new technologies or science (independent of the reason why they are against them), but no theory provides a precise answer concerning how humanity should handle this threat. Therefore it does not seem that these ethics are capable of dealing effectively with these “new threats”. The only solution is to create a new kind of obligation for humanity to face and deal with these new problems.
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3.2 Environmental Ethics Nowadays
The possible risks arising from new technology and science indicate that there must be some sort of new responsibility towards an application of new science and technology within environmental ethics.
However, before considering the question of responsibility, the first question to be answered is if there is anything like a “responsibility” to control possible risk arising out of new technology and what can this “responsibility” be grounded on, to make it suitable and applicable within society.
(a) Responsibility in the past
In the past the human being was focused almost exclusively on his own survival, which was enabled through the building and founding of communities and cities.58 Hence, nature was not within the sphere of influence of the human being or its responsibility, because humans were able to sustain themselves.59 Based on these basic interactions and given human incapability of interfering with natural surroundings, relations with nature were neutral and attending environmental ethics were purely anthropocentric.60 Furthermore, these relations and ethics were largely characterised by the idea of living in the here and now, which limited all ideas concerning environmental issues to the appropriate timeframe as well as the needed territorial validity.61 The idea of thinking outside of one self ’s lifespan or area of living was not common at all.62
But over time, the human demand for natural resources grew and thus the “usage” of nature changed. These new interactions were often a result of new technological innovations, which led humans to a more intensive exploitation of the environment.63 Examples are the large deforestation in the late 1650s and the Industrial Revolution.64 Although these changes in environmental protection, treatment and sustainability were often very harmful for the environment and even for human beings themselves, they still differ to a great extent from the issues arising nowadays because of the ongoing boost of technological and scientific development.65 Human beings have crossed the line, now capable of
65 Shrader-Frechette, supra note 35, at 188–189.
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destroying nature, and ourselves.66 This new ability necessitates rethinking the scope of the relationship between humans and the environment.
(b) Responsibility today
With new technologies, like the pesticide DDT which caused the death of thousands of people or the use and danger of nuclear power, humanity has reached a new level of possible environmental threats.67 These examples illustrate the danger and the possible harm caused by these new inventions and point out the vulnerability of the environment.68 This new created power of humanity is a novelty, and because of this new “strength” our relationship towards the environment and hence towards environmental ethics needs to be reconsidered.69 Furthermore, questions arise concerning our own understanding of nature and whether the environment is a “legally protected good”, which so far have only been dealt with within different religions, but not within legal ethics.70
This rapid change and the intense ramifications of science, technology and the environment illustrate that the former division between the human within its community or city and surrounding nature cannot be upheld any more.71 New “laws”, “rules” or “obligations”, considering the environment as a legally protected good, have to be set up to deal with the new challenges of the future (generations) and the preservation of the present.72 Science and technology have to be taken seriously to be able to face the challenges of the future and therefore we need to define the relationship towards them.73 The neutrality of science, technology and ethics as mentioned earlier is now gone and upcoming events are new and guided by uncertainties and possibly fear.74
(i) Emerging of the “new” responsibility
A new understanding of responsibility and therefore a new ethic must emerge. For a start, the question arises as to where this responsibility actually comes from. There are two approaches to this question. One is that this responsibility
(London: Earthscan, 2006) 179; Jonas, supra note 1, at 46–47.
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is a result of an agreement, and the second that this responsibility is a result of the cause itself.75 These approaches are guided by the idea that knowing about the power of something automatically creates a timeless responsibility about the use of this power.76 To illustrate the different origins of responsibility, parallels are drawn between the ancient responsibility between parents and their children (as a responsibility coming out of the cause itself )77 and the responsibility of a politician to his country (as a responsibility out of an agreement).78 The new responsibility of humans for the environment is a combination of both approaches: humans are part of nature, and humans have also assumed this responsibility by allowing the development of powerful technologies.79 This responsibility includes all objects and humanity’s duty to use its power with humility.80Sometimes it is argued that we should get rid of the boundaries which hold back new technology, because we could benefit from it.81 Due to the fact that experts are dealing with these matters, proponents argue, the risk is not too high.82 It is said that our fear of new technology is mainly a result of our missing confidence of relying on moral values.83 Scepticism of the applicability of some kind of “responsibility” goes so far that some consider the idea of responsibility as useless.84 It is often pointed out that the new idea of responsibility is just an imitation of the Precautionary Principle.85 In addition to it, the idea of responsibility would limit the Precautionary Principle and “devaluate” it to cases of extreme and irreversible danger.86 This confinement makes the idea of responsibility questionable.87
There is no right to dare the “not-being” of future generations because of the “being” of present generations, which also involves the problem that
78 Ibid, at 180–182.
83 Ibid, at 112–113.
87 Ibid, at 197–198.
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presently “non-existing” things do not have any standing.88 To save the future of mankind the number one aim must be the protection of the environment, which is not necessarily excluded by anthropocentrism, and therefore a sine qua non.89 Because of the extreme expansion of mankind’s power, the consequential responsibility must equally expand, which also includes the use of new guiding terms like “conservation”, “preservation”, “prevention” instead of “progress” and “improvement”.90
(ii) Consequence of the “new” responsibility
Therefore for the first time in environmental ethics future generations or, generally speaking, the future, must be seriously taken into account.91 As in the past the maxim was that “the entitlement of being does only exist with being itself ”, this new responsibility and therefore ethic must deal with “non- beings”.92 Yet there are some authors doubting that there is more than a minimal connection or responsibility between different generations, because the good which might be shared is unclear.93 Consequently, different generations cannot be in any kind of moral relationship, which is also illustrated by the fact that “future people cannot reciprocate present people for their sacrifices”.94 Rarely there might be an obligation on the present generation, which is comparable to a responsibility to constrain to participate in a certain way.95 On the contrary it is argued that there is an obligation between generations, because they share a “common conception of the good”, due to the fact that future generations will also need clean air, water, and natural resources.96
Overall it is important that the prophecy of doom is given greater heed than the prophecy of bliss, because there is too much at stake.97 The main focus must be on responsibility towards the future and with that for the things and events still to come.98 Based on all that a kind of emergency ethic is proposed, which can be described as “Yes to Being”.99 The slogan “knowledge is power” is now twisted in “our knowledge (due to science and technology) leads to
90 Ibid, at 248–249 & 251.
91 Christopher D Stone, “Ethics and International Environmental Law”, in Daniel Bodansky et al (eds), The Oxford Handbook of International Environmental Law (Oxford and New York: Oxford University Press, 2007) 291, 304; Jonas, supra note 1, at 28.
92 Ibid, at 26–28.
98 Jonas, ibid, at 37–38, 174 & 232.
99 Laura Westra, supra note 73, at 180; Jonas, ibid, at 250.
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unconsciousness and self-destruction”, and needs to be controlled again.100 But it is questionable who can provide this power to control the dangers arising out of new science and technology. To do this, it is proposed that the controlling power needs to come from society.101 Society needs to accept and implement discipline and restrictions to be able to “make” a future.102 This does not mean that the individual is responsible, it rather means that the collective has to (re) act to fight the battle in the undefined future.103 Nevertheless, due to the fact the individual, as part of the collective, is bound to morality and the responsibility, this is reflected on the state as well.104Furthermore, the idea that there is a reciprocity between generations must be abandoned; rather, we should recognise an altruism between them (comparable with the relationship of parents to their child), that a de facto responsibility exists nowadays.105 This responsibility is not focused on exact future human beings, but on the idea of human beings as an existing part of the whole world.106 It also must be kept in mind that there is no discharge from the responsibility and using the power without care would be “irresponsible”.107
While Kant said that “you can because you ought”, today is has to be “you ought because you act”, “which you do because you can; which means your exorbitant capacity is already at work”.108 Consequently, new imperatives could be for example: “If there are human beings in the future — which depends on our procreation — then such and such duties are to be observed by us toward them in advance”109 or “Act so that the effects of your own action are not destructive of the future possibility of such life”.110 But it must be pointed out that this new responsibility is not imposed on the individual, but upon the collective, which also includes the state itself.111
Now it needs to be examined how this responsibility interacts with different aspects of society. This includes a closer examination of the impact on
105 Ibid, at 85–86 & 177–178.
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states, their political orientation and organisations of individuals, like non- governmental organisations (“NGOs”).
(a) Impact and consequences on the contemporary political system
The question of how and whether a change within a political system must happen is difficult. To begin with, in the contemporary world, the state still plays a major role.112 This is best made clear by the fact that almost all control is within the hands of the elite, which are themselves educated by the state.113 Therefore the state has influence on what they know.114 Due to that it is obvious that a change must involve the state and its apparatus.
It is doubtful whether the responsibility to face the dangers of new science and technology can be achieved through a suggested establishment of Marxism.115 As history has shown, the ideas of Socialism, Marxism and Communism failed, and it is doubtful whether a modernised version would have any better success. Furthermore, there would still be the risk that these systems would be corrupted by greed and desire for power. Sometimes the question is even raised, whether a change of political system would make any difference; perhaps the persons in charge will somehow handle the matter always in the same way.116 On the other hand, there is the idea of an unlimited use of science and technology within the existing political systems.117 The horror of the abuse of science, for instance within World War II, and willingness of some scientists to blank out any moral values to get the results they desire, just illustrates the danger of this proposal. It seems to be vital that there are restrictions and controls concerning scientific development.118 Despite the critique concerning the offered approaches, there is a consistent understanding that something has to happen, because technological development moves on apace.
To face upcoming challenges the best idea is to involve the public to a greater extent. The excuse that the general public often does not understand the exact scientific question or problem cannot be a persistent or convincing reason to keep them out. Rather, the opposite is often the case, as many are interested in participating in such decisions and developments. A possible negative outcome for the elites cannot lead to an ongoing resistance towards any public participation. In the few cases where the public has been involved, it was shown that there was a great interest in taking part. Therefore the most desirable solution would be to make more use of the democratic tools, which
114 Ibid, at 256–257.
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allow a public participation.119 The risk of unwanted decisions is a vital part of democracy, which the leaders of the systems have to accept.
(b) NGOs
Non-governmental organisations could be an answer to the question of the collective responsibility of individuals. By definition, a NGO is a “voluntary group of individuals or organizations, usually not affiliated with any government, that is formed to provide services or to advocate a public policy”.120 Therefore, NGOs are a way for the individual to express themselves in a collective, yet governmental-independent, way.
The first active involvements on a political scale date back to the 1970s, although most NGOs are older.121 Also, Principle 10 of the Rio Declaration deals with the participation of citizens, by regulating that “environmental issues are best handled with participation of all concerned citizens, at the relevant level”. Because of the greater acceptance of NGOs, many states moved on to award them participatory rights within their own judicial systems.122 Besides the fact that the participation of NGOs is a product of democracy, governments have realised that public participation is a vital part of legitimate decision-making.123 The importance of NGOs is based on the sole state acceptance that they are representative of the citizens and therefore they are rewarded the privilege to attend meetings and so on to state their opinion.124 In most cases NGOs are limited to an “observer” or “participating role” and need a prior accreditation before they are allowed to interact at all.125
(i) Public participation
Looking at the opportunities for public participation, it is striking that there are almost no agreements or contracts on an international level.126 One of the few exceptions is the Aarhus Convention. As can be seen in Article 1 in combination with Article 3(1), “each Party shall take the necessary legislative, regulatory and other measures ... to achieve ... public participation”. Furthermore, Article
125 Ebbesson, supra note 121, at 689, 690–691 & 693.
126 Ibid, at 698–699.
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6(6) of the Convention states that “each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law”. Even the North American counterpart, the North American Agreement on Environmental Cooperation (“NAAEC”), has no comparable regulation concerning public participation.127To close the existing gap of public participation, the ILC tried to hand out some guidelines. It drafted the 2001 Prevention of Transboundary Harm from Hazardous Activities. According to Article 5, “States concerned shall take the necessary legislative, administrative or other action ... to implement the provisions of the present articles”.128 Furthermore, Article 13 provides that:129
... States concerned shall, by such means as are appropriate, provide the public likely to be affected by an activity within the scope of the present articles with relevant information relating to that activity, the risk involved and the harm which might result and ascertain their views ...
(ii) Access to justice
Article 3(1) of the Aarhus Convention illustrates a first step, by pointing out that “Each Party shall take the necessary legislative, regulatory and other measures ... to achieve ... access-to-justice”. This is then specified by Article 9 of the Aarhus Convention, which says that “Each Party shall ... ensure that any person ... has access to a review procedure before a court of law or another independent and impartial body established by law”. But also the NAAEC has a mechanism for a judicial review, as stated in Article 6(1): “Each Party shall ensure that interested persons may request the Party’s competent authorities to investigate alleged violations of its environmental laws and regulations and shall give such requests due consideration in accordance with law.”
(iii) The Aarhus Convention on a national level
The implementation of the Convention on a national level is important. Therefore, the next section will examine the transformation of the Aarhus Convention in Germany.
InItIal sItuatIon
As can be seen in § 42(2) of the German Administrative Courts Act (Verwaltungsgerichtsordnung (VwGO)), because of the “protective norm doctrine” (Schutznormtheorie) a plaintiff needs to be violated in a personal right, not in a public right, to be able to file a complaint. This is also valid for
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all NGOs, which leads to the fact that environmental harm cannot be contested because of a merely public interest. However, there is nowadays an exception to this rule. According to § 61(2)(1–3) of the BNatSchG, NGOs and other associations are able to file complaints to courts, if acts or regulations are passed (only those passed after the implementation and under the scope of this Act) which might hurt the environment and which are related to the constitutional rules of the NGOs or associations.
Changes under aarhus
One of the first changes due to the Aarhus Convention was the introduction of the Environmental Information Act (Umweltinformationsgesetz (“UIG”)) in 2004.130 According to § 3(1), “every person has the right of free access to environmental information without having to demonstrate a legal interest”.131 However, there is still reluctance to allow parties a standing because of Article 9(2) of the Convention and the requirement of a “sufficient interest” or alternatively an “impairment of a right”. This reluctance stems from the fact that both requirements of Article 9(2) are seen as prerequisites for the general “access to justice” norm of the German Administrative Courts Act and not per se as a right of action.132 Despite most arguments about this restriction,133 as can be seen in Article 9(2)(b) of the Aarhus Convention, it is up to each party to the Convention to determine the width of the access to justice. However, the same article also points out that this should be a wide-access possibility “consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention”. Due to the ratification of the Aarhus Convention, it has become a binding document and therefore Germany is committed to the Aarhus aims.134 Furthermore, it is important to note that the Aarhus Convention aims for a wide locus standi and not an actio popularis.135 Consequently, Germany is not obliged to abandon their “protective norm doctrine”, but they have to broaden the possibility for NGOs etc to practise their right of action.
(c) Conclusion
NGOs per definition could be an answer concerning collective respon- sibility. Through them the individual may be able to get a chance to influence state policies concerning new developments of science and technologies.
131 Ibid, at 436–437.
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Therefore, NGOs are able to take on a big part of the responsibility arising out of the extensive use of science and technology. However, it is striking that the possibilities for NGOs to participate actively on a state level are very ambiguous. To date, there are very few international treaties which deal with the questions of participation and access to justice. Yet these two aspects are the most important ones to take on humanity’s responsibility effectively. As shown, it is doubtful that the state itself will react concerning the threats coming out of new science and technologies. This is mainly due to the existing economic system, which almost forces every state to develop more and new scientific and technological improvements.The Aarhus Convention and to a certain extent the NAAEC are first notice- able steps in a change of old habits. Although some critics might point out that the rules and obligations within these documents do not go far enough, it must be seen as a first step. As illustrated by the example of Germany, there is a new movement. So far, changes have only happened on a small scale, which can be seen by the fact that the “protective norm doctrine” in Germany is still valid, but within the BNatSchG there already exists the first exception to the basic rule. Instead of seeing this as a failure of the system, because nothing else has happened, it needs to be recognised as an initial small success. Only the slow pace of change needs to change. But yet again, this change was unimaginable twenty years ago. We must not, however, rest on these laurels; the process needs to be consistently promoted. This is mainly due to the issue that all of this change mentioned above is only happening in Western countries. Humanity’s future is also taking place in other parts of the world, where these ideas and values are far from being accepted or even implemented. Therefore, we must bear in mind that these parts of the world have the same responsibility and hence need to adjust in the same way, which shows that there is still a lot of work to be done.
3.3 Ecology
As mentioned earlier, there has been a change in the way humans deal with science and the environment. Based on the anthropocentric view, an almost complete separation between science and its interactions with nature took place. To get away from this separation, ecology may be able to help to provide assistance for environmental ethics, by creating a greater scientific foundation for ethical approaches.136
136 Shrader-Frechette, supra note 35, at 204.
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Nowadays there are different approaches to how science and the environment interact. These cover a broad field of understanding on how this relationship should be set up. At one extreme, some see science as privileged compared to nature and that therefore all problems can and have to be resolved by science.137 Others are not concerned about science itself, but about the enquiries of scientific research, which all scientists need to be aware of.138 A further approach says that the values and ideas of science do not need to be changed, but a sweeping change of the principles of “reductionism” and “instrumentalism” determining interactions with nature has to happen.139 Within this opinion it is suggested that science should be the ally of nature, and because of an existing “social responsibility” a reorientation of values has to take place.140 And last but not least is an approach which sees science itself as the cause of all problems and therefore rejects the idea of solving environmental issues with any scientific aid.141
Based on the ethical and religious views of preceding centuries a separation between subjects (humans) and objects (non-humans) took place, which led to justification for experiments on other life forms.142 One of the first authors to write about this new approach was Francis Bacon, who argued that:143
[T]he scientific pursuit of knowledge was not an end in itself, but the means whereby humankind could finally bring nature to heel, establishing dominance over ‘her’ processes and re-ordering the world to suit the interests of just one of its species.
However, it would be mistaken to assume that this view of separation of the living (humans) and non-living (objects, such as the environment) is just related to this time period. Even Aristotle was an adherent of the concepts of “good for man” and the “restrictions of happiness and well-being to man” when it came to politics and ethics.144 Over time these ideas became a self-conception, which furthermore can be seen by the fact that René Descartes in his Sixth Discourse
137 Hay, supra note 2, at 120.
138 Ibid, at 120–121.
143 Ibid, at 122–123.
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joins hands with Bacon concerning the naturalness of exploiting nature through science and technology.145Nowadays the focus is no longer on the whole of the environment, but on fragments, which runs the risk of getting a wrong picture of reality.146 Because of the extensive use of the environment for the needs of ongoing scientific development, scientists point out that the threshold of nature’s self-recovering power has been surpassed.147 While some suggest that we ought to abandon all Western understandings of science, most point out that a change in values has to occur and that science must become more socially and environmentally benign.148
The word “ecology” itself dates back to 1866, when the German natural philosopher Ernst Haeckel used the Greek word “oikos” (meaning “home” or “household”) to scientifically describe the relationship of organisms and their environment.149 It includes mainly ecological awareness, which “recognizes the fundamental interdependence of all phenomena and the embeddedness of individuals and societies in the cyclical process of nature”.150 Ecology is nowadays understood as “a metaphysical and/or political philosophy centred on nature”.151 But it was not until the 1960s that ecology became a significant science.152 However, to date, scientists working in the field of ecology fight against disparagement of their science, which is the result of many “pseudo- scientists” who abuse ecology for their so-called “ecology movement”.153
Ecology examines the world and nature as a whole, including humankind and its actions as part of the environment.154 To further refine the ambit of ecology, there are four basic rules to which it adheres, namely, “everything is
145 Ibid, at 125.
146 Ibid, at 127 & 129.
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connected to everything else”, “everything must go somewhere”, “nature knows best”, and “there is no such thing as a free lunch”.155
Most problems within the field of ecology result from the fact that many terms are not properly defined. For example, one problem is that ecology as an eco- science often tries to explain the whole, but does not define what that whole is.156 Or the term “stable ecosystem” is often used without an explanation as to what the prerequisites for a stable ecosystem actually are.157
One approach toward a more precise definition is the Gaia theory, which proposes “that life on earth co-ordinates, regulates and self-corrects in such a way that it is maintained even through substantial alterations to the geological and chemical conditions that sustain it”.158 The idea of Gaia goes back to James Lovelock, who proposed that “the entire world [is] one vast self-regulating organism” and therefore could be regarded as a “single living entity”.159 Yet the Gaia approach is not completely convincing, as it is very imprecise concerning what stability of the system means.160 However, the Gaia theory is a major contributor to the fact that the use of science and technology is nowadays more critically discussed and more comprehensively supervised.161
Overall, it can be concluded that science itself is not necessarily detrimental to the protection of the environment, but its method of usage is very important.162 Furthermore, it has to be recognised that advantages for the ecosystem are not always good for the individual at the same time.163 However, sometimes the principles of ecology are taken too far, as it seems to be forgotten that some events in nature, even if unwanted, are a part of natural selection and therefore do not need to be prevented.164 It is often pointed out that ecology is mostly dealing with the upkeep of the status quo, rather than a complete reform of any system.165
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There are several doubts concerning the ability of ecology to contribute to environmental ethics, because of its weak predictive power.166 However, it must be observed that the ability to predict is not a criteria for categorisation of a science, but the goal of it, and that every science is not perfectly deductive.167 Therefore, it would be wrong to demand too much from ecology.168 On the other hand, it is argued that ecology is the general basis for environmental ethics and hence can explain everything.169 This is not convincing either, due to the fact that no science can explain everything to a full extent.170We may conclude that ecology is a helpful additive towards the proper protection of nature, but not the only truth. Through the influences of ecology it is possible to restrain science in a proper way. But, as shown, ecology cannot be the only answer. It can however be a useful supplement towards a more considerate science. To be able to live up to what is expected, ecology has to step out of the twilight, which is imposed by pseudo-scientists, using ecology for their own causes. By accepting the limits of ecology and appreciating the opportunities it offers, there is a good chance to use this science effectively, as a supplement to other branches of science, making them more aware of the needs of nature. A good example is the Gaia theory, which recalls that the whole world is an entity and that humanity’s future is related to the well-being of its environment. However, by overstressing the abilities of ecology, it runs the risk of not being taken seriously. Therefore, a more careful, but not too fearful, use of ecology must be the way forward.
3.4 The State and “Environmental” Responsibility
After examining the responsibilities of the individual and the collective, a closer look at the environmental responsibility of states needs to be taken. As can be seen from the definition of state under Article 1 of the 1933 Montevideo Convention, a permanent population is a key part of a state. Since society “is the aggregate of people living together in a more or less ordered community [or] a particular community of people living in a country or region, and having shared customs, laws, and organizations”,171 a state is made up by its society. A distinction should be drawn between primary rules (those that establish the obligations of the state) and secondary rules (concerned with the breach of
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primary rules and with the consequences of such breach).172 Thus, the primary rules of environmental responsibility are going to be discussed first, and secondly the consequences of a breach of primary rules.
For the first time in 1992, the Rio Declaration adopted the concept of “common concern”, to point out those issues which are within a global responsibility.173 The question what is a “common concern” is often answered within the respective documents, for instance in the Preamble of the 1992 Climate Change Convention. The fact that an environmental responsibility exists is also shown by the idea of erga omnes responsibility174 — i.e. that “the international community can hold individual states accountable for compliance with their obligations through institutions”.175 Such institutions can be, for example, the Conference of the Parties to the 1992 Climate Change Convention according to Articles 7(2)(e) and 10 of the Convention. However, within these common responsibilities there are different configurations of the responsibilities, depending on which state is acting.176 These common, but differentiated, responsibilities can best be seen in Article 3(1) of the 1992 Climate Change Convention, which states: “Parties should protect ... in accordance with their common but differentiated responsibilities and respective capabilities.” The same idea of allocating responsibilities can be seen in Principle 7 of the Rio Declaration.
In Article 3 of the 2001 UN Prevention of Transboundary Harm from Hazardous Activities the obligation is stated that “the State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof ”. This establishes in general an obligation to prevent or minimise environmental harm actively, and not just rely on later reparations.177 This obligation for the state is an ongoing one, which forces each state to keep track of new advances in science and technology.178 Furthermore, the obligation to not cause international transboundary harm is stated in Principle 2 of the 1992 Rio Declaration and Principle 21 of the 1972 Stockholm
175 Ibid, at 131–132.
77–78, para 140.
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Declaration.179 And since the 1996 Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons, there is no doubt about the question of whether this obligation is customary international law.180Although this responsibility is only explicitly formulated for transnational environmental harm, it must be pointed out that nowadays most activities do have such an extent. Most new technologies and sciences, like nuclear or fusion power plants, gene manipulation of crops, or cloning, have a wide-ranging impact. In addition, new insights into how the environment works and how everything is connected demonstrate that existing sciences and technologies often have a greater influence than expected.
After establishing that there is a duty on states to prevent environmental harm, a more detailed look must follow. Therefore, two principles are going to be examined more closely. These are the two main principles guiding environmental law, the Prevention Principle and the Precautionary Principle. In addition, a short illustration of additional principles and ideas are discussed to clarify the exact scope of the related obligations, laws and principles.
(a) Prevention Principle
The Trail Smelter Case is regarded as the first reference to the Prevention Principle in international law.181 The Arbitration Court concluded within its judgment that there is a “rule of basic international law, which obliges states to anticipate transboundary damage”.182 Furthermore, this principle was referred to in Principle 21 of the 1972 Stockholm Declaration and Principle 2 of the 1992 Rio Declaration: “States have ... the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” It is to the widest possible extent regarded as a rule of customary international law.183 But it must be pointed out that the Prevention Principle does not set up a general guarantee that all adverse activities have to be prevented, it merely establishes a due diligence on states to prevent harm.184 Therefore, states must have failed to comply with their due diligence obligation to be liable afterwards for the
184 Boyle, supra note 24, at 15–16.
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caused harm.185 Hence a state may not be liable, independent of the severity of the caused harm, if it did not violate its due diligence obligation.186
(i) Legal status of the Prevention Principle
To guarantee an effective application of the Prevention Principle, it cannot just rely on the setting of a general rule, which might be implemented by states.187 To date, numerous international treaties, covering a wide range of environmental areas such as the marine environment, the atmosphere, and biodiversity, have included the Prevention Principle.188 The Principle has also become a part of customary international law,189 as illustrated by the International Court of Justice (“ICJ”) in the Advisory Opinion in the Legality of the Threat or Use of Nuclear Weapons 190 and its decisions in the New Zealand v France Case 191 and the Gabcˇíkovo-Nagymaros Project,192 where the existence of a general obligation similar to the ones stated in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration is affirmed and furthermore is seen as a “corpus of international law relating to the environment”.193
(ii) Effectiveness of the Prevention Principle
In practice the Prevention Principle helps set up a framework of legal behaviour towards the treatment of the environment and is linked to pollution sources and points of impact.194 As already mentioned, not all actions which harm the environment are automatically forbidden. This is also amplified by the fact that permission is awarded to undertake potentially harmful actions under concepts like “best available techniques”, “best environmental practice”, “clean production methods”, or “best available technology not entailing excessive cost”.195 To contain possible risks, states adopt product norms, regulate manufacturing processes, assess environmental impact etc, which often results in stating quality standards that are dealing with an allowed amount of polluting substance within a product.196 The Prevention Principle is also reflected within
188 Ibid, at 64–66.
196 Ibid, at 72–73.
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civil liabilities, such as the duty of reparation or the payment of compensation, because these penalties and obligations influence other people to not adopt the same behaviour as the polluter.197 The civil liabilities are backed up by an adjusted criminal law, which also seeks punishment of the polluter, being a deterrent for polluters who have the money to buy themselves out of the civil liability.198 Last but not least, the use of the cost-benefit analysis must receive attention. Based on the analysis it is calculated in proportion to the benefit for the environment against the costs of gaining that effect.199Thus, a new technology standard which is beneficial for the environment is not going to be implemented if the resulting costs exceed the environmental benefit.200 The cost-benefit analysis is today also integrated into international law, as can be seen by Directive 2008/1/EC, which in Article 1 “lays down measures designed to prevent or, where that is not practicable, to reduce emissions”. It is argued that the costs are only out of proportion when high socio-economic expenses arise or the whole industrial branch is at stake, but basically it is up to each single state to define the term “out of proportion”.201
At first sight it seems that the system and the integration of the Prevention Principle is very well thought through, but this is deceptive. First of all, is the fact that there are exceptions to the Principle of Prevention, which leaves the system vulnerable to the inherent risk of abuse, because the exceptions are very broad and depend on the definition of each single state. Thus, a state can choose what “best environmental practice” means and thereby proceed on a very “open” definition of what practice is the best. The same danger is also faced on the question of civil and criminal liability, because the exact definition rests on the national state. By narrowing down the applicability, i.e. through choosing very dense or limited definitions, the state can decide what behaviour of a person it wants to control or not. Finally, the question of the correct use of the cost-benefit analysis arises. There are serious concerns that this analysis will end up as a pure economic analysis, where nature or the whole environment are not considered as part of the balancing.202 The threat is that the requirement for an out-of-proportion assumption is lowered by the state, if it is scared of any economic or financial loss. Hence the whole system would be at risk, because of an erosion of the whole concept of prevention.
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(iii) Relationship to other environmental principlesThe interaction of the Prevention Principle with other environmental principles has to be examined to completely understand the idea of prevention.
Polluter Pays PrInCIPle
Firstly, the relationship towards the Polluter Pays Principle must be discussed. The Polluter Pays Principle entails that the polluter bears the cost of controlling activities which may cause harm, and in cases of environmental harm is liable for his activities.203 The first viable definition of this Principle dates back to the Rio Declaration, where it is mentioned in Principle 16.Based on the definition of the Polluter Pays Principle and the Prevention Principle, it can be inferred that there is a difference between the “obligation to reduce and control existing pollution” and the “obligation to prevent new cases of pollution”.204 While the Polluter Pays Principle deals with cases where the pollution has already taken place, the Prevention Principle applies in cases where the pollution has not yet occurred or the spread of an existing pollutant can still be contained.205 Nevertheless, the Polluter Pays Principle is also a tool to prevent future pollutions, by imposing the cost of cleaning and reparation on the polluter and not the community.206
PreCautIonary PrInCIPle
Next, the relationship to the Precautionary Principle must be considered. Albeit both principles deal with “risk” as a major factor, each principle has a different understanding of that term.207 While the Prevention Principle is based on certainties, the Precautionary Principle deals with the probability of risks, which cannot yet be proven.208 For the Precautionary Principle it is sufficient that a risk is suspected or feared.209 The Prevention Principle, on the other hand, needs a kind of “cause-and-effect relationship”, where it is already known what harm is going to be caused.210 Overall the Precautionary Principle is used when science cannot yet deliver a prediction of a possible outcome.211
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(iv) Instruments of the Prevention PrincipleLastly, the exact instruments of the Prevention Principle must be examined to assess the Principle as a whole. The main instruments of the Prevention Principle are (1) thresholds; (2) Best Available Technology (“BAT”); and (3) the Environmental Impact Assessment (“EIA”).
thresholds
Due to the fact that it is impossible to predict all possible forms of environmental harm, regulations need to be set up concerning permitted behaviours and what goes beyond the pale.212 Therefore, thresholds must be imposed and which environmental actions are acceptable and which are unacceptable and consequently forbidden determined.213 These thresholds appear in different shapes, such as in percentage of material, concentrations of substances, or decibels, and it is suggested that a breach of a threshold is automatically seen as an infringement, which leads to a sanction for the breach.214 But the mechanism of thresholds is also controversial. It is argued that the establishment of thresholds disguises the “resurgence of technocratic decision making” and that it violates the idea of a fundamentally protected environment and the Principle of Non-degradation.215On the other hand, it is often argued, based on the “assimilative” approach, that the ecosystem can deal with a certain amount of pollution by itself and because of “nature’s ability” to compensate restricted amounts of pollution, thresholds are scientifically justifiable.216 Yet the “assimilative” approach is itself debatable.217 Firstly, there is no certainty as to what amount of pollution the environment can “assimilate” or what possible “undesirable effects” are.218 Furthermore, the levels of pollution must comply with matching thresholds (so- called ecological quality standards).219
Overall the instrument of thresholds is pretty diverse concerning its benefits and detriments. The basic idea of thresholds is worth supporting, although this can only be the start for a more comprehensive protection of the environment.
212 Ibid, at 82.
213 Ibid, at 82–83.
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Therefore, thresholds must be geared to environmental needs and not economic ones. However, in reality thresholds are mostly based on economic and technical capacities, rather than on environmental ability to absorb created pollution.220 In addition, these thresholds do not take the cumulative effect of pollution into account; till now, they have focused just on each pollution source by itself.221 This illustrates that thresholds as an instrument are not working at the moment. Despite the good general idea, the misuse of it almost transforms it into the opposite of an environmental protection instrument.
Best avaIlaBle teChnology
The next instrument of the Prevention Principle is the BAT:222
[BAT] mean[s] the latest stage of development [state of the art] of processes, of facilities or of methods of operation which indicate the practical suitability of a particular measure for limiting discharges.
A similar definition can be found in Annex I(1) of the Helsinki Convention.
Classification of BAT. The first question to be answered is whether the BAT instrument belongs to the Prevention Principle or the Precautionary Principle. The Second International Conference on the Protection of the North Sea, London, 1987 illustrates that the BAT instrument can be applicable to both principles. In the section “Inputs via rivers and estuaries of substances that are persistently toxic and liable to bio-accumulate” of the Ministerial Declaration it is stated that “the best available technology ... applies especially when there is reason to assume ... certain damage or harmful effects ... even where there is no scientific evidence to prove a causal link between emissions and effects”. This degree of uncertainty and unpredictability illustrates that the BAT is best suited for the Prevention Principle. Furthermore, if harm is assessable, reactive measures can be carried out.
Comprehension and problems of BAT. Besides the mentioned treaties, even the EC law integrated the BAT, by implementing the IPPC Directive. The Directive itself refers to the “best available techniques” as an instrument which has to be considered if the matter is concerned with possible harmful environmental impacts in Article 2(12). Compared to the “end-of-pipe” approach the BAT is beneficial, because it obliges every part of society which may cause
220 Ibid, at 83–84.
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environmental harm to reduce their pollution by implementing the state-of-the art technology.223However, within the BAT a cost-benefit balancing often takes place. This can be seen in several treaties which include the BAT mechanism, like the Helsinki Convention, where it is said in Annex I(1)(c): “In determining
... the best available technology ... consideration is given to ... (c) The economic feasibility of such technology”; or in Article 7(a) of the Long-range Transboundary Air Pollution Convention (“LRTAP”), where “the Contracting Parties ... shall initiate and co-operate in the conduct of research into and/ or development of ... (a) Existing and proposed technologies ... including technical and economic feasibility”.
Even the IPPC Directive deals with the “feasibility” of the BAT.224 The IPPC Directive regulates in Article 2(12)(c) connected with Annex IV of the Directive “considerations to be taken into account generally or in specific cases when determining best available techniques, as defined in Article 2(12), bearing in mind the likely costs and benefits of a measure and the principles of precaution and prevention”. As a result, it is better to talk about “best available technologies not entailing excessive costs” (“BATNEEC”), which has to balance economic costs against costs to the environment in each individual case.225
As a result, the BAT runs the risk of becoming obsolete for enforcing the Prevention Principle, because the definition of “feasibility” is up to the state, which will tend to decide in favour of its own economic interests.226 On the other hand, balancing within the BAT has to take place, because otherwise it runs the risk of becoming “overused” in the way that every BAT must be implemented at any cost. Furthermore, this runs the risk that some parts of industry will not be able to bear the burden of costs and are ruined by the obligation. Altogether the problem of abuse is built into the whole BAT system, so that an effective operation of this instrument is only guaranteed if it is properly and independently supervised.
Best avaIlaBle sCIenCe
Another instrument is the emerging idea of Best Available Science (“BAS”), although it is not so well recognised as BAT. As with BAT, the question arises as to which Principle (Prevention or Precaution) this instrument belongs. But by referring back to the arguments under the BAT, it can be assumed that the BAS is best suited within the Prevention Principle.
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The BAS itself is not very often mentioned as an instrument of international environmental law, which is also illustrated by the fact that only few national laws include it. One of these is the San Francisco Environment Code where in s 101 it promotes “based on the best available science ... the selection of the alternative that presents the least potential threat to human health and the City’s natural systems”.The general idea is that necessary actions concerning environmental harm are shifted away from risk assessment and the basic consideration of “how much harm can be tolerated”.227 BAS therefore encompasses the idea of looking for less dangerous options, which cause less harm, as can be seen in s 100 of the San Francisco Environment Code:228
The process takes short-term versus long-term effects or costs into consid- eration, and evaluates and compares the adverse or potentially adverse effects of each option, giving preference to those options with fewer potential hazards.
Furthermore, public participation is stressed in order to find alternatives (s 100(G) and by s 101 which provides that “alternatives assessment is also a public process because ... the public bears the ecological and health con- sequences of environmental decisions” and that “public participation and an open and transparent decision making process are critical to finding and selecting alternatives”). By stressing this aspect, law-makers pointed out that the participation and therewith the awareness of the public is a vital ingredient of the success and acceptance of the BAS.229 It envisioned that this increased awareness would help to trigger a “behavioural revolution”, wherein personal responsibility, as discussed earlier, is understood.230
Overall the BAS is a good approach to assist the Prevention Principle in becoming more efficient. Irrespective of the question of where this instrument is suited best, it is a great complement to the earlier discussed “new” definition and understanding of science. It is especially worthwhile mentioning that the San Francisco Environment Code responds to the issue of public participation, because this is an oft-neglected point within most environmental principles. By involving the public in the struggle for a healthy environment, a greater acceptance will evolve, which will help to deal with future challenges.
229 Ibid, at 717–718.
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envIronmental ImPaCt assessment (“eIa”)
The last instrument of the Prevention Principle is the EIA, which was introduced in the US in 1969 through the National Environmental Protection Act and is adopted nowadays in over 100 countries all over the world.231 The most useful definition of the EIA can be found in Principle 17 of the Rio Declaration, which states: “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.”Through ex ante classifications (scoping),232 states try to live up to their responsibility of environmental harm prevention. As long as the principle of state sovereignty exists in the way it is understood today, it must be accepted that the state has the final word on important matters, such as the definition of “significant”. Nevertheless, the EIA has also promoted positive changes within environmental thinking. This can be seen within the public participation in the assessment of new project risks. Although public participation depends on the national law and the integration of the EIA, there are national laws where that participation is already really strong.233 This again illustrates how the success of the EIA depends on the state and its implementation.234
Overall the EIA is a good instrument to prevent environmental harm from technology and science. Yet it has to be implemented by the state to be an effective tool for the prevention of harm. The acceptance of public participation makes the EIA unique compared to the instruments of thresholds or BAT. This must be used to gain a greater acceptance from the public for the need and importance of environmental harm prevention. The success of environmental protection is largely dependent on the cooperation of the public, so that the BAT and thresholds, because of their almost solely scientific-based background, are not suitable to be accepted by the majority of the people. On the other hand, it is easier for the individual to contribute information and knowledge if he or she lives in the area where a new project is planned and is integrated into the EIA process. Therefore, the EIA is a worthwhile supporting instrument.
(b) Precautionary Principle
The Precautionary Principle has its origin in adages like “better safe than sorry” or “prevention is better than cure” and therefore is very well known to most
231 Neil Craik, The International Law of Environmental Impact Assessment (Cambridge: Cambridge University Press, 2008) 4.
232 Ibid, at 29–30.
233 Ibid, at 31–32.
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people.235 Its general rationale is to develop anticipatory ideas and actions to identify possible outcomes of technological usage and related risks.236 Over the years, there have been shifts concerning the application of the Precautionary Principle, based on the states concerned and economic interests.237 The fact that the US placed a lot of emphasis on risks like stratospheric ozone protection, nuclear power, and mad cow disease, and the EU, on the other hand, on risks such as marine pollution, genetically modified foods, and climate change, illustrates these different alignments.238 In many cases there is a widespread understanding of what the Precautionary Principle encompasses and how it should be legally formulated.239
(i) Legal status of the Precautionary Principle
So far there have been several attempts to codify the Precautionary Principle in law and make it one of the founding ideas of environmental law.240 Since the 1970s, states have begun incorporating the Principle into their national law, a process which reached its temporary climax in the inclusion of the Precautionary Principle by the EU in Article 174 of the EC Treaty.241 Even within the US there are a couple of Acts which include the Precautionary Principle (e.g. US Federal Food, Drug and Cosmetic Act), although the term “precaution” is not used.242 But there are still some problems concerning the acceptance, meaning and actual scope of the Precautionary Principle. In the case Industrial Union Department, AFL-CIO v American Petroleum Institute et al some doubted whether the Precautionary Principle is at all compatible with US federal law.243 The adverse US attitude is also demonstrated in the fact that they do not talk about the Precautionary Principle, which is a result of an insufficient adoption of this principle on a federal basis.244 Instead of using the term “Precautionary Principle” it is referred to as “Precautionary Approach”, despite the numerous treaties signed by the US which call it the “Precautionary Principle”.245 It was
439.
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claimed that the “approach” would lead to a greater flexibility of precaution than seeing it as a principle.246 To solve this problem, some advocate that the Precautionary Principle become international customary law and therefore binding for all states, independent of their perceptions.247 Others argue that the utilisation of the Precautionary Principle is varying too much and hence it is too unclear for it to become a binding international norm.248 Despite this discussion it can be agreed that the Precautionary Principle/Approach is innovative in the way that it influences the role of scientific data. It requires that if there is the threat of environmental damage (even if scientifically not proven), actions need be taken to control or abate possible environmental interference.249
(ii) Burden of proof
The question of who has to carry the burden of proof cannot be answered dogmatically, only case by case.250 However, courts, like the European Court of Justice, seems to impose on the party which claims the environmental harm the obligation to at least provide some evidence to establish a prima facie case.251 Therefore, the Precautionary Principle does not necessarily shift the burden of proof and thus polluters are not automatically required to prove that the particular action is not dangerous to the environment.252 The only exception to this rule is in cases of the global commons (like whaling), because there the damaging state has first to explain why it causes damage and prove that it is limited to a certain amount.253 However, the shifting of the burden of proof is often seen as a very effective tool.254
(iii) Foreseeability of harm (Principle 15 of Rio Declaration)
To elucidate the importance of the Precautionary Principle (although here it is just mentioned as “approach”), Principle 15 of the Rio Declaration deals with it. It states: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities.” This just clarifies that there is an obligation to implement policies based on the Precautionary Principle. Despite cases where it is completely unforeseeable what might
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happen, in most cases, like nuclear technology, a responsibility arises out of the knowledge of its hazards.255
(c) Risk assessment
Furthermore, the idea of risk assessment is a vital part preventative measure. The risk assessment must be based on the current state of knowledge, whereby no certainty is required.256 However, it has to be noted that this state of knowledge is not only based on science, because political and economic factors can be of influence too.257 Furthermore, it is often the case that science offers more than one answer concerning the problem.258 Therefore259
[t]he primary purpose of a risk assessment is not to make or recommend any particular decision; rather, it gives the risk manager information to consider along with other pertinent information.
It always has to be kept in mind that a complete risk analysis is never possible, because of the complexity of the topic and the variety of related fields (e.g. biology, toxicology, geology etc) involved.260 Guidelines for a better and more effective risk assessment need to be set up, to limit unnecessary monetary support and scientific uncertainties.261 It is not surprising that without any defaults major differences can occur; already starting with the different use of terms for a risk assessment.262 Risk assessment can deliver helpful guidance for science and technology, but this is also its limit, because it is not a science itself.263
(d) Conclusion
These preventive principles perfectly illustrate that tools already exist to fight dangers arising out of new science and technologies. Examining the Pre- cautionary Principle and the Prevention Principle, it can be concluded that both Principles are aiming to contain dangers arising out of new and uncontrolled innovations. Yet the aforementioned problems concerning applicability also
526.
261 Ibid, at 1014 & 1016.
262 Sullivan & Hunt, supra note 257, at 527; Hetes, ibid, at 1017.
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show how much more work is needed to actually get both Principles working in the intended way. The different implementations of these Principles may lead to complete confusion. Furthermore, factors like cost-benefit calculation have to be abandoned to deal effectively with environmental risks. Due to the power of some new technologies, it would be highly irresponsible to abandon a possible solution or reaction just because of its costs. This renders the whole system inefficient, sometimes even obsolete. The issue is how states could be forced to transform rules in a similar way. Because of existing sovereignty, there are almost no ways to pressure a state to completely comply. This could only be done by redefining state sovereignty, which would be difficult to achieve. But till then, principles always run the risk of being an empty shell due to reluctance of proper implementation. However, ideas like BAT and BAS are worth promoting, because a total banishment of science would be the wrong answer. Both ideas present the possibility of a smart balance of new science and technology and the treatment of possible risks, although care must be taken that these ideas are used correctly. This could be done by establishing an independent controlling body. In addition, there needs to be more emphasis on the balancing of values, taking the environment into account. Only if the Prevention and Precautionary Principles are used in the way they were intended, is an efficient containment of environmental risk possible.
Although the first and main purpose of reactive measures are “to punish” after the harming event has already taken place, their second and almost equivalent important aspect is to discourage similar harmful events. These reactive measures are part of the secondary rules, which deal with the consequences of a breach of primary rules.
(a) Liability
Both states and individuals can be held liable for their behaviour. As shown above on an international level, the first time state liability was discussed was within the Trail Smelter Case. But already in the Chorzów Factory Case the Permanent Court of International Justice (“PCIJ”) observed that an illegal act requires reparation.264 Starting in the 1970s, the ILC dealt with this topic for the first time and tried to establish a framework for international liability, which is not yet finished.265 In 2001 the ILC finally adopted the 59 ILC Articles on
264 Permanent Court of International Justice, Case Concerning the Factory at Chorzów, at <http://www.worldcourts.com/pcij/eng/decisions/1927.07.26_chorzow/> [1927]
worldcourts.com (accessed 21.06.09) 1, 15–16.
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Responsibility of States for International Wrongful Acts.266 These apply to “all types of international obligations regardless of their source, subject matter, or importance to the international community”.267 These 59 articles include everything from definitions of harm, and wrongfulness, up to rules concerning reparation.For a fully operative liability it is important that the concept of “obligation erga omnes” is established, because only then will all feel equally responsible and play by the rules.268 Nowadays the ILC focuses more on the liability of the operators than the states, because the causation of harm has shifted away from states.269 One of the first attempts was the establishment of the Polluter Pays Principle.270 Despite the responsibility of the operator, the state has to enable a conviction of the operator and the payment of reparation to the victims, which cannot only depend on the solvency of the operator.271
(b) Polluter Pays Principle
Another reactive measure is the Polluter Pays Principle. After discussing the definition and the meaning of this principle earlier, the actual application of it must be examined. Thereby two perceptions are vindicated.
The first one takes an economic approach towards the application of the Polluter Pays Principle, by saying that it should be treated as a market-like transaction, where the polluter and the affected party negotiate a possible solution, which is characterised as the “reciprocal nature of harm”.272 Hence a contrasting juxtaposition between the value of the polluting source and the value of the clean environment and everyone living in it must be done and the more economically useful one has to prevail.273
The second perception takes a different approach by pointing out that the Polluter Pays Principle is not an economic principle but a judicial one.274 Therefore, it is based on a moral and equity judgement, which represents the idea and the effort of a clean environment.275 Overall because the law, which also includes the Polluter Pays Principle as a part of international environmental
271 Ibid, at 1032–1033.
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law, pays a lot of attention towards the fairness and ethical principle, a pure economic assessment would be insufficient.276
(c) Evaluation of reactive measures
If the understanding of the Polluter Pays Principle was invariably dominated by a balancing of economic advantage, the protection of nature would be non- existent. In all cases where the financial benefit of a polluting industry prevails, it would not matter how bad the environmental harm is, because a change would be unprofitable and therefore not acceptable. But this is exactly what law and especially environmental law are trying to prevent and to change. Besides the protection of the individual, nature itself has to be considered in a stronger way and is an abstract factor in a comparative calculation. This can in many cases only be achieved through the judicial system, which must take moral and ethical values into account to reach a fair decision. This can include an economically non-beneficial or non-profitable decision. Therefore, the second perception must have priority, or otherwise the whole system of environmental protection would be at risk.
3.5 The Principle of Sustainability
Another approach towards the problems arising from new technologies and science can be found in the Principle of Sustainability. This Principle is defined as “the duty to protect and restore the integrity of the Earth’s ecological system”.277 Furthermore, it is closely related to the needs of future generations and how we must take them into account.278 This connection with future generations illustrates the close relationship with the idea of responsibility, mentioned earlier. Considering the needs of future generations automatically includes the evaluation of modern science and technology. If these are putting the future at risk, they would not comply with the Principle of Sustainability. The main core of the Principle is humanity’s lifelong wish and its need to live in harmony with nature.279 Harmful science and technology would put this ambition at stake and are therefore not acceptable. Implementing the Principle of Sustainability to a greater extent into international and national law would be a good expression of our joint responsibility and would help us to control upcoming risks.
278 Ibid, at 2 & 98–99.
Legal & Societal Responses to Threats from Modern Science & Technology 113
3.6 Covenants
Further, the idea of covenants could help to control the risk of new science and technologies. A covenant was originally a religious-political term, unifying these two spheres.280 In its literal meaning, covenant implies “to come together” or “to come together by making a promise”.281 Some core values are found all over the world, like the welfare of the family and country.282 These values are often so important that people would fight for them.283 Furthermore, covenants are critical components of the maintenance of social and moral order.284 A good example of a modern covenant is the Earth Charter. It is appropriate to speak about a new covenant with Earth, which is closely related to our moral and spiritual roots and the existing ecological crisis.285 In several parts of the Earth Charter there are explicit references to humanity’s responsibility, starting with the Preamble where it is pointed out that we have a “responsibility to one another, to the greater community of life, and to future generations” which is part of a universal responsibility everyone shares “for the present and future well-being of the human family and the larger living world”. The Earth Charter is often seen as the last chance of humanity to govern humans and create a set of values which enables us to live in harmony with the planet.286
The Earth Charter is also one of the first documents where almost all countries in the world officially accepted that a responsibility towards nature exists. Nevertheless, it must be remembered that a covenant is a “voluntary consent, established by mutual oaths or promises”.287 It is therefore doubtful if a covenant is the right tool to contain scientific or technological threats in a proper way. It seems that when it comes to their economic growth and welfare, states care little about non-binding documents. However, even if the fact a covenant is non-binding might militate against its utility, this would be too narrowly considered. The Earth Charter is the first attempt to understand the Earth and with that the environment as an entity. As was shown earlier, awareness that new technologies and science can be a threat to the environment developed over a
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long period. At first people did not even realise what kind of power they had created. The Earth Charter actively reminds humanity of that, by mentioning obligations like “universal responsibility”. Despite the fact that the covenant is not binding, it can deliver an impetus to a greater awareness of the problem and to its more sustainable combat. Therefore, while the Earth Charter or a possible other covenant might not be the answer, it is at least the beginning of the journey to find an answer.
4. CONCLUSION
The question of how to contain risk emerging out of new science and technology is difficult to answer. As shown in this article, a lot needs to be done, but plenty has already been accomplished. Firstly, attention needs to be focused on the fact that new technologies and sciences are almost everywhere in our lives. This is not just something limited and far off like nuclear power or gene manipulation. People need to be aware that their daily life is influenced by both major and minor technological and scientific developments.
But there are also problems with the existing tools to handle the threats arising from these new inventions. For example, there is no international court for environmental harm; there are just review procedures as under the Bern (Article 14) and Aarhus (Article 15) Conventions.288 The missing unification of environmental terms, mechanisms and instruments is also illustrated by the fact that there is no unified definition of environmental harm, a possible threshold, or if it is the “Precautionary Principle” or the “Precautionary Approach”. All this leads to the position that existing tools, which are capable of predicting and containing possible risks, are disabled or in the worst case even become useless. There needs to be a unified approach to those definitions and principles.
This leads to the problem of implementation and state sovereignty. Most international treaties have a section which leaves it up to the state to incorporate tools (like the Precautionary Principle or the Polluter Pays Principle) into national law. With that, states also have the right to self-determine how strictly they are going to transform the international obligation. Most international treaties demand a relatively small implementation of the content. This often causes problems, because national states just transform the amount they need to fulfil their legal obligation. The result is that something new is written into the national law, but it mostly turns out to be an empty shell. Even states like Germany, which frequently took a guiding role in the protection of the environment, have problems implementing international obligations, if they touch core legal values.
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Therefore, the idea of “collective” responsibility has to take more promi- nence in the daily discussion. As shown, states are unwilling or in the worst case because of their economy unable to change their behaviour towards science and technology. The only way to have them reconsider their opinion is to “force” that reconsideration. One of the ways to do that effectively is to influence people’s minds concerning the treatment of innovations. Through public participation, public information, and the ability to have a right of action, the collective could exercise control over untrammelled development of new science and technology. Yet this new consciousness first needs to develop in the minds of the people. This awareness could be fostered by a broader use of ecology itself or as part of science, concerning the treatment of the environment and responsibility towards future generations. Within ecology one of the main aims has to be getting rid of the connotation of ecology as a pseudo-science. This includes a renunciation of accepting or even tolerating pseudo-scientists, who discredit ecology. Ideas like the Earth Charter are perfect examples of how spiritual beliefs and political instruments can be combined and are therefore more accessible to the average person.
Overall there are many tools and ideas, of greater or lesser usefulness. But time is fast running out and new steps must be taken. Therefore, the Earth Charter can only be a preliminary step on the journey. Further steps like the worldwide unification of prevention tools have to follow. In addition, the people’s awareness of the existing responsibility must be evoked. At the same time, the whole topic should be treated carefully so as not to condemn completely any kind of science and technology. It always needs to be borne in mind that science and technology can be very helpful partners in the struggle against environmental risk and harms. Therefore, a new, but strict and straightforward, way of using existing tools more efficiently, and including people through NGOs because of the collective responsibility, must be pursued.
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