The European Union: an Appropriate Model for a Precautionary Approach?

• Publication year: 2001

SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 3WINTER 2002

COMMENT

The European Union: An Appropriate Model for a Precautionary Approach?

Linda O'Neil Coleman(fn*)

Table of Contents

I. Introduction.................................................................610

II. The Precautionary Principle Defined and Applied.............................................................................612

III. The European Union as a Model................................619

A. The Formation of the European Union.............................619

B. The European Union and Trade......................................620

1. Articles 30 and 34 of the European Union Treaty.....620

2. Exceptions to Articles 30 and 34..............................621

C. Recent Case Law Applying the Precautionary Principle.....622

D. The European Union Communication on the Precautionary Principle..................................................................623

IV. The United States' Acceptance of the Precautionary Principle (or at Least a Precautionary Approach) Domestically and its Reluctance to Adopt the Principle Internationally...........................................................624

A. Domestic Endorsement of the Precautionary Principle........625

B. The United States' Reluctance to Adopt the Precautionary Principle Internationally...........................................627

1. International Conduct.............................................627

2. Legal Hurdles.........................................................628

3. The United States Courts' Failure to Recognize the Precautionary Principle as a Rule of International Law...............................................................629

4. The United States' Reluctance to Adopt the Precautionary Principle in International Instruments or in its Trade Practices...........................................630

V. States Should Look to the European Union as a Starting Point for the Uniform Application of the Precautionary Principle......................................633

VI. Conclusion.....................................................................635

I. Introduction

Traditionally, free trade, protection of human health, and protection of the environment were treated as independent policy goals.(fn1) More recently, however, attention has shifted toward "the linkages and potential conflicts between trade and environmental measures."(fn2) The debate regarding the North American Free Trade Agreement (NAFTA) is one such example. Opponents of the Agreement argued, among other things, that free trade between the United States and Mexico would encourage American companies to move their businesses to Mexico in order to avoid U.S. Environmental laws.(fn3) Proponents, however, took the position that free trade would in fact "produce higher standards of living, which in turn [would] encourage higher environmental standards. "(fn4)

A similar debate occurred during the 1994 Uruguay Round revisions to the General Agreement on Tariffs and Trade (GATT).(fn5) Those in favor of the new agreement argued that disregarding environmental concerns would cause states to purposefully weaken their environmental standards in order to gain an economic advantage over states with stricter standards.(fn6) On the other hand, opponents of the revisions stated that taking into account environmental factors would cause states to act in an arbitrary and discriminatory manner toward another state when making decisions on economic and trade matters with that state.(fn7)

At the heart of the many debates regarding the interplay between free trade and human health and environmental concerns is a concept called the "precautionary principle."(fn8) Many states have adopted this principle.(fn9) Specifically, the precautionary principle requires those states adhering to the principle to regulate substances or activities "that may be harmful to the environment . . . even if conclusive scientific evidence of their harmfulness is not yet available."(fn10) Supporters of the principle have argued that all states should adopt the principle as a matter of international law in a number of environmental and public health areas, including pesticides, electro-magnetic fields, food safety, the transport of radioactive waste on the high seas, sustainable development, whaling, genetically engineered food, and the use of certain synthetic hormones in beef.(fn11) Critics, however, take the position that the precautionary principle is an environmental policy that is vague, uncertain, counterproductive, a "paradoxical peril,"(fn12) and used by states as a restraint on trade.(fn13)

Despite the controversy surrounding the precautionary principle, the idea that a precautionary approach should be taken in order to protect public health and the environment has been articulated in a growing number of international instruments.(fn14) For example, the European Union has incorporated the precautionary principle into its regional policy.(fn15) The European Union case law also reflects a growing number of decisions citing the precautionary principle.(fn16) Given its widespread acceptance in Europe, advocates of the principle argue that the European Union has effectively used this principle without compromising free trade, and therefore, it can be seen as a model to the rest of the international community, including the United States.(fn17) Specifically, some have taken the position that the precautionary principle is sound and can be precisely defined and uniformly applied in disputes between states. As discussed below, however, the term "precautionary principle" is not as easy to define and apply as proponents might argue. Instead, it appears that many of the legal instruments and cases citing to the principle have defined and applied the principle in different ways. Case law also seems to reflect uncertainty regarding its application. Finally, there has been reluctance by some states to adopt the principle when addressing international environmental and public health concerns that may have a detrimental impact on a state's national economic welfare.

This Comment will argue that the current use and application of the precautionary principle should not be abandoned. However, before adopting the principle as a rule of international law, the international community should look to the European Union as a starting point for how to uniformly define and apply the precautionary principle. Accordingly, Part II of this Comment will examine the various formulations of the precautionary principle and the widespread adoption of a precautionary approach in a number of international instruments. Part III will describe the European Union's use of the principle and its attempt to balance environmental and public health concerns against economic concerns. Specifically, this section will discuss the European Union Treaty, the European Court of Justice's interpretation of that treaty, and several recent decisions from the European Union. This section will also examine a recent European Union Communication on the Precautionary Principle. Part IV will discuss the United States' adoption of a precautionary approach nationally and its reluctance to do so internationally. Finally, Part V will argue that the international community should adopt the precautionary principle if it can ensure uniform definition and application of the principle so as to avoid arbitrary decisions that fail to adequately address potential environmental and public health risks or decisions that are motivated by economic protectionism.

II. The Precautionary Principle Defined and Applied

Many scholars have argued that states have an affirmative duty to prevent not only known environmental harms and health risks but also conduct that may be harmful, "even if conclusive scientific evidence" regarding harmfulness is not available.(fn18) This idea is generally referred to as the "precautionary principle."(fn19) The notion that a precautionary approach should be employed when addressing environmental issues is not altogether new. For example, a number of regional agreements and international instruments expressly refer to the precautionary principle or to the need for a precautionary approach. Attempts have also been made to reach a consensus regarding a definition. The January 1998 Wingspread Statement is such an example. It states, "When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically."(fn20)

According to one author, the origin of the precautionary principle appears to have evolved in response to environmental issues involving the Wadden Sea, which borders the Netherlands, Germany, and Denmark.(fn21) The German Council of Experts on the Environment described "a precautionary approach" as follows:A successful environmental policy has to be guided by the principle of precautionary action, in part because the mechanisms which determine the limits of environmental capacity are still largely unknown. Environmental policy therefore has to prevent adverse ecological developments, without having the opportunity to be guided only by already measured impacts on the marine environment when specific measures have to be...