Precautionary Principle in the International Tribunal for the Law of the Sea

AuthorYoona Cho
PositionJ.D. Candidate, May 2011, at American University Washington College of Law
64FALL 2009
by Yoona Cho*
*Yoona Cho is a J.D. Candidate, May 2011, at American University Washington
College of Law.
The World Trade Organi zation (“WTO”) encourages its
members to fully exhaust negotiations and consultations
before bringin g a case before its Dispute Settleme nt
Body.1 Indeed, a majority of all WTO disputes are resolved
in consultatio ns,2 allowing its members to gain accountability,
“save face,” and preserve sovereignty. The International Tribu-
nal for the Law of the Sea (“ITLOS”), an international environ-
mental dispute resoluti on body, should follow the lead of the
WTO in requiring a pre-dispute consultation period and encour-
aging its members to resolve differences outside of the Tribu-
nal’s dispute settlement process.3 Although the WTO sets a f‌ine
example in the area of consultations and dispute settleme nt, it
sets a less impressive and less relevant standard on the precau-
tionary principle. In contrast to th e WTO, the ITLOS should
continue to deftly def‌ine and employ the precautionary principle
to increase its authority and protect ocean resources.
The preca utionary-like principle that WTO me mbers may
invoke is set forth in Article 5.7 of the Agreement on the Appli-
cation of Sanitary and Phytosanitary Measures.4 It allows mem-
bers to make a f‌inal decision on the safety of a product wh en
faced with in suff‌icient scient if‌ic data.5 It also requires th e
members to activel y seek new informatio n and to review the
measures within “a reasonable period of time.”6 In reality, this
approach has failed to achieve much success within the WTO
system. The debate over the use of the preca utionary principle
presented itself in WTO cases such as the beef hormone debate
where the European Communitie s (“EC”) tried to ban all hor-
mone-treated beef from the United States, and in the EC Biotech
Products dispute where the EC attempted to ban all genetically
modif‌ied food and seed.7 In thes e decisions, the WTO rejected
the use of the precautionary principle.8 Similarly, when Japan
tried to ban American apples from entering its domestic market
by invoking Article 5.7, the Appellate Body of the WTO ruled
that determination of “reasonable period of time” was on a case-
by-case analysi s and that Japan had failed to meet the require-
ment for reviewing its measures.9
In contrast to the treatment the precaut ionary principle
has received at the WTO, the precautionary principle has been
instrumental to achievements in the area of international envi-
ronmental l aw. When scientists began linking the use of chlo-
rof‌luorocarbons to ozone depletion, the use of the precautionary
principle in an international agreement galvanized and justif‌ied
global action.10 The Montreal Protocol forced the international
community to take cost effective actions to deal with irreversible
consequences even in ligh t of scientif‌ic uncertainties.11 Eff ec-
tive impleme ntation of environment al law needs to proceed in
spite of scientif‌ic uncert ainties in order to prevent irreversible
The ITLOS has succes sfully inc reased its legitimac y by
demonstrat ing an effective formula through incorporation of
the precautiona ry approach in its judgments.12 In the Southern
Bluef‌in Tuna case, the ITLOS encoura ged the parties to act
with “prudence and caution ” in order to ensure conservation
of marine life.13 In 1999, its decision revealed a precautionary
approach and became the f‌irst instance of an international judi-
cial decision employing this notion.14
To avoid overuse of th e preca utionary approach, which
could result in diminished legitimacy, the ITLOS established a
clear threshold in the Mixed Oxide Fuel plant case (“MOX”).15
MOX involved a dis pute over marine pollution between the
United Kingdom (“UK”) and Ireland in which Ireland requested
that ITLOS stop the UK from releasing radioactive waste from
the MOX plant into the Irish Sea, a mongst other provisional
measures.16 The Tribunal took this opportun ity to clarify th e
extent and limits in the use of the precautionary approach. In
doing so, the Tribunal emphasized the requirement of ind icat-
ing the seriousness of the potential harm to the marine environ-
ment.17 The IT LOS ruled that Ireland had failed to meet the
necessary threshold in demonstrating the urgency and the seri-
ousness of the potential harm.18
The Tribunal’s judgment in the MOX plant case was in line
with Montreal Protocol’s Principle 15, in which the precaution-
ary approach was narrowly constr ued.19 In order t o invoke the
precautionary approach, the harm to be prevented cannot be gen-
eral, but has to be identif‌iable and clear. Furthermore, the threat
must pose serious or irreversible damage to the environment.
The pre cautionary principle is not without its constraints.
There is a threshold th at the parties have to prove in order for
the Tribunal to use the approach.20 Effective international envi-
ronmental law requires a precautionary approach, and the exis-
tence of scientif‌ic uncertainties sho uld not hinder socie ty from
taking effective actions today. The willingness of the ITLOS to
employ the precautionary approach in its judgments has not only
demonstrated its appreciation and conce rn for environmental
issues, but has also given it legitimacy and a workable formula
to enhance its role.
Endnotes: Precautionary Principle in the International Tribunal for
the Law of the Sea continued on page 90

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