Current status of
genetic modification
in New Zealand
2.
section 2.2 |
appendix 1
Context and process
Section contents
2.
Current status of genetic modification in
New Zealand
52
2.2
Genetic modification and the precautionary approach 70
Introduction
70
Current status in the international context
70
New Zealand use of the principle
75
Elements of the principle at issue
76
References and further information
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2.2 Genetic modification and
the precautionary approach
Introduction
The precautionary principle is based on the concept of taking anticipatory action
to prevent possible harm under circumstances where there is a level of scientific
uncertainty. However, there is much discussion and diversity of opinion as to
defining and applying the principle. Because application of the principle is
particularly important in issues of genetic modification, this section outlines the
development of the principle and gives examples of differing interpretations of the
principle in international usage, including its application in New Zealand.
The precautionary principle emerged in European environmental movements and
began to be incorporated in legislation and other agreements in the 1970s,
reflecting a growing concern about the ability of scientific risk assessment and
management models to accurately predict the adverse effects of new and complex
technologies. It has been said that its roots are in the 1930s German concept of
Vorsorgeprinzip ("foresight planning") used to distinguish between the dangers
and the risks caused by human behaviour. Two different approaches were required:
to prevent dangers on the one hand; but, where there was only a risk of effects
occurring, to investigate risk prevention and, if warranted, apply preventative
measures (Coates 2000).
Because the precautionary principle has evolved over time and in a number of
places for different purposes, there is no one generally agreed definition, nor is
there any uniform interpretation of the principle.
Current status in the international context
The precautionary principle is one of the basic premises of international
environmental law. It currently appears in over 20 international treaties, laws,
protocols, and declarations (Table 2.2 gives a range of examples).
It has been considered by the International Court of Justice (eg, New Zealand's
case against France on nuclear tests in the Pacific).
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Statements from Conventions
1
London Convention 1972 (Resolution LDC. 44/14, 1991):
AGREES that in implementing the London Dumping Convention the Contracting
Parties shall be guided by a precautionary approach to environmental protection
whereby appropriate preventive measures are taken when there is reason to believe
that substances or energy introduced in the marine environment are likely to cause
harm even when there is no conclusive evidence to prove a causal relation between
inputs and their effects;
AGREES FURTHER that Contracting Parties shall take all necessary steps to ensure
the effective implementation of the precautionary approach to environmental protection
and to this end they shall:
(a) encourage prevention of pollution at the source, by the application of clean production
methods, including raw materials selection, product substitution and clean production
technologies and processes and waste minimization throughout society;
(b) evaluate the environmental and economic consequences of alternative methods of
waste management, including long-term consequences;
(c) encourage and use as fully as possible scientific and socio-economic research in
order to achieve an improved understanding on which to base long-range policy
options;
(d) endeavour to reduce risk and scientific uncertainty relating to proposed disposal
operations; and
(e) continue to take measures to ensure that potential adverse impacts of any dumping
are minimized, and that adequate monitoring is provided for early detection and
mitigation of these impacts ...
2
UN Framework Convention on Climate Change (Article 3(3), 1992):
The Parties should take precautionary measures to anticipate, prevent or minimise the
causes of climate change and mitigate its adverse effects. Where there are threats of
serious or irreversible damage, lack of full scientific certainty should not be used as a
reason for postponing such measures, taking into account that policies and measures
to deal with climate change should be cost effective so as to ensure global benefits at
the lowest possible cost ...
Table 2.2
International statements of the precautionary principle
continued
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3
Convention on the Protection of the Marine Environment of the Baltic Sea Area
(Article 3(2),1992)
The Contracting Parties shall apply the precautionary principle, i.e., to take
preventative measures when there is reason to assume that substances or energy
introduced, directly or indirectly, into the marine environment may create hazards to
human health, harm living resources and marine ecosystems, damage amenities or
interfere with other legitimate uses of the sea even when there is no conclusive
evidence of a causal relationship between inputs and their alleged effects.
4
Convention for the Protection of the Marine Environment of the North-East Atlantic
(Article 2(2)(a),1992)
The Contracting Parties shall apply:
(a) The precautionary principle, by virtue of which preventive measures are to be taken
when there are reasonable grounds for concern that substances or energy
introduced, directly or indirectly, into the marine environment may bring about hazards
to human health, harm living resources and marine ecosystems, damage amenities or
interfere with other legitimate uses of the sea, even when there is no conclusive
evidence of a causal relationship between the inputs and the effects...
5
Treaty on European Union (Article 130r(2), 1992)
Community policy on the environment shall aim at a high level of protection taking into
account the diversity of situations in the various regions of the Community. It shall be
based on the precautionary principle and on the principles that preventive action
should be taken, that environmental damage should as a priority be rectified at source
and that the polluter should pay. Environmental protection requirements must be
integrated into the definition and implementation of other Community policies.
Non-treaty statements
1
Declaration of the Second North Sea Conference (Paragraphs VII and XVI.1,1987)
Accepting that, in order to protect the North Sea from possible damaging effects of
the most dangerous substances, a precautionary approach is necessary which may
require action to control inputs of such substances even before a causal link has been
established by absolutely clear scientific evidence...
Table 2.2
continued
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[The participants] accept the principle of safeguarding the marine ecosystem of the
North Sea by reducing polluting emissions of substances that are persistent, toxic and
liable to bioaccumulate at source, by the use of the best available technology and
other appropriate measures. This applies especially when there is reason to assume
that certain damage or harmful effects on the living resources of the sea are likely to
be caused by such substances, even where there is no scientific evidence to prove a
causal link between emissions and effects ("the principle of precautionary action")...
2
UNEP Governing Council Recommendation (12th Meeting, May 25, 1989)
Recognizing that waiting for scientific proof regarding the impact of pollutants
discharged into the marine environment may result in irreversible damage to the
marine environment and in human suffering.
Also aware that policies allowing uncontrolled discharges of pollutants continue to
pose unknown risks...
The UNEP Governing Council ecommended that all Governments adopt the `principle
of precautionary action' as the basis of their policy with regard to the prevention and
elimination of marine pollution.
3
Bergen Declaration (Paragraph 7, 1990)
In order to achieve sustainable development, policies must be based on the
precautionary principle. Environmental measures must anticipate, prevent and attack
the causes of environmental degradation. Where there are threats of serious or
irreversible damage, lack of full scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.
4
Declaration of the Third International Conference on the Protection of the North Sea
(Preamble, 1990)
[The participants] will continue to apply the precautionary principle, that is to take
action to avoid potentially damaging impacts of substances that are persistent, toxic
and liable to bioaccumulate even where there is no scientific evidence to prove a
causal link between emissions and effects.
continued
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Table 2.2
continued
5
Agenda 21 (Oceans Chapter 17, Paragraph 17.21, 1992)
A precautionary and anticipatory rather than a reactive approach is necessary to
prevent the degradation of the marine environment. This requires, inter alia, the
adoption of precautionary measures, environmental impact assessments, clean
production techniques, recycling, waste audits and minimization, construction and/or
improvement of sewage treatment facilities, quality management criteria for the
proper handling or hazardous substances, and a comprehensive approach to
damaging impacts from air, land and water. Any management framework must
include the improvement of coastal human settlements and the integrated
management and development of coastal areas.
When an activity raises threats of harm to human health or the environment,
precautionary measures should be taken even if the cause and effect relationship
are not fully established scientifically.
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Most notably the precautionary principle has been specifically incorporated in
Principle 15 of the 1992 United Nations Conference on Environment and
Development (The Rio Declaration) which states that:
where there are threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation
Article 11.8 of the Cartagena Protocol on Biosafety (January 2000) states:
Lack of scientific certainty due to insufficient relevant scientific information and
knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of
import, taking also into account risks to human health, shall not prevent that Party from
taking a decision, as appropriate, with regard to the import of that living modified
organism intended for direct use as food or feed, or for processing, in order to avoid or
minimize such potential adverse effects.
However, because the Protocol provides that risk assessments are carried out in a
scientifically sound and transparent manner, the exact impact of the Protocol
remains unclear. This reflects a central unresolved issue in national and
international invocations of the principle, namely, the issue of what level of
scientific evidence of potential harm is required to trigger the application of
precaution.
The Rio and Cartagena formulations are widely cited as definitive statements of
the precautionary principle by both supporters and critics.
New Zealand use of the principle
New Zealand is a party to the multilateral environmental agreement, the Rio
Declaration on Environment and Development, which was one of the achievements
of the 1992 UN Conference on the Environment and Development (UNCED or
the `Earth Summit').
The Declaration has 27 guiding principles for sustainable development, including
the precautionary approach which states that lack of full scientific certainty of the
causes or effects of environmental damage should not be a reason for delaying
action to prevent such damage. Such a principle is not legally binding but parties to
the Declaration agree to respect it when considering a particular environmental
issue. New Zealand's environmental legislation is considered to be largely in
accord with the themes of Agenda 21, the plan to implement the Rio Declaration
principles, and the challenge is their satisfactory application here.
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The precautionary principle has been included in the key legislation governing
genetic modification in New Zealand. Section 7 of the Hazardous Substances and
New Organisms Act 1996 describes the "precautionary approach" as involving:
the need for caution in managing adverse effects where there is scientific and technical
uncertainty about those effects
In July 1995, Government also adopted the precautionary approach as one of the
guiding principles in the Environment 2010 Strategy for integration of
environment, society, and the economy.
At another level, the joint standard on Risk Management published by Standards
New Zealand and Standards Australia (AS/NZS 4360) and the associated Handbook
203-2000: Environmental Risk Management - Principles and Process note that
adoption of the principle or a precautionary approach is one way of addressing the
inherent uncertainty and ignorance associated with environmental decisions.
Organisations have to take decisions, but in some cases the decision-maker must
explicitly recognise that unknown factors exist.
Elements of the principle at issue
Generally, the core elements or directions underlying the precautionary principle,
and also the main areas of debate, are:
*
recognition of scientific uncertainty and fallibility
*
presumption in favour of health and environment proaction (ie, a willingness
to take action in advance of formal scientific proof)
*
a shift in the onus of proof and standards of evidence to those who propose
change (ie, the users of the technology must prove with low margins of error
that it is safe, rather than challengers of the technology having to prove
unacceptable risk to the same standard of proof)
*
standards of acceptable risk (safety)
*
providing ecological margins of error
*
cost-effectiveness of action or inaction (ie, some consideration of
proportionality of costs associated with the use or non-use of the technology;
thus, the more catastrophic the potential effect, the more presumption in
favour of precaution despite its costs)
*
intrinsic value of non-human entities
*
concern for future generations
*
paying for ecological damage through strict/absolute liability regimes.
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The common criticisms of the precautionary principle include:
*
The precautionary principle lacks a uniform interpretation. One study
found 14 different interpretations of the principle (Foster et al, 2000). Some
treaties, such as that of the European Union, refer to the principle but do not
define it. Other international instruments, such as the Cartagena Protocol,
adopt it in an ambiguous manner.
*
The precautionary principle marginalises the role of scientists and can be
applied in an arbitrary fashion. This criticism is based upon the concern that
the invocation of the principle usually involves the relaxation of the
standards of proof normally required by the scientific community. In the face
of evidence less rigorous than that required for "science-based" conclusions,
decision-making then invokes other, extra-scientific considerations.
*
The precautionary principle is used as a veiled form of trade protectionism.
The essence of this criticism is that the principle is used to circumvent the
fundamental rules established by trade agreements enforced by the World
Trade Organization, which generally require a showing by an importing
country of reliable scientific evidence that an exported product poses levels
of risk not accepted in domestic products (eg, the Agreement on the
Application of Sanitary and Phytosanitary Measures). The precautionary
principle undermines the force of this requirement by releasing the importing
country from the onus of proof and/or relaxing the rigour of the scientific
evidence required to allege unacceptable risk.
*
The use of the precautionary principle is a form of over-regulation that will
lead to a loss of potential benefits (such as increases in agricultural
productivity).
References and further information
Publications
Coates D. 2000. The Precautionary Principle - "Nothing ventured, nothing gained"?
Avcare Insights 1: 2.
Foster KR, Vecchia P, Repacholi M. 2000. Science and the precautionary principle.
Science 288: 979­981.