Book Reviews: Implementing the Precautionary Principle: Approaches from the Nordic countries, EU & USA


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As any student of environmental law knows, there is a multiplicity of definitions of the precautionary principle. This can be a source of frustration both to those who see in the principle a key pillar in humanity's response to the growing awareness of the downside of technological advance, and to those who contend that it can be misused to block potentially useful technological development. Without a clear definition, accordingly, the prospects for progress in making the principle operational in any meaningful way could appear bleak. And yet, as two recent books demonstrate, these definitional problems have not prevented the implementation of the precautionary principle at a variety of levels, in a variety of jurisdictions and in a variety of contexts. They also demonstrate that an examination of the experience of implemen¬tation can produce valuable information about the nature and definition of the principle itself.

The first of these books, edited by Nicolas de Sadeleer, focuses in particular on the lessons that can be drawn from the experience of the Nordic countries, all of which have been in the vanguard of environmental protection. At the outset, the editor provides a thorough review of the status of the precautionary principle in EU law. While he explicitly states that it is not his intention to discuss the controversies surrounding the principle at a more conceptual level, he is very clearly aware of them and the chapter provides ample coverage of the questions and complexities that beset both the definition and application of the principle. Nor does it take long for those ontroversies to surface.
In Part II of the book, which provides a comparative analysis of the precautionary principle in the Nordic countries, Ellen Margrethe Basse reports on the hesitations and concerns of both legislators and judges with respect to the principle in Denmark where it is understood more as a political than a legal principle, while Erkki Hollo notes that in Finland the focus has heretofore been on prevention rather than precaution, once again on the basis of a legal/political distinction. As regards Iceland, Adalheidur Johannsdottir suggests that the principle is having an impact as a result of membership of the EEA, but that the country's constitution does not yet reflect modern environmental objectives. Even in Norway, where Hans Christian Bugge perceives the influence of the precautionary principle over a period of more than three decades, the fact remains that it barely appears in areas of policy that have an impact on environmental degradation and it is a question of whether the evolution from an optional to a compulsory principle will continue. Sweden too, while ranking amongst the front runners in the development of a precautionary approach and having enshrined the principle in its Environmental Code, allows a balancing of interests that may result in a diminution in its impact, according to Gabriel Michanek. In conclusion, whilst there is now a growing jurisprudence on the precautionary principle at the European level, this is not mirrored at the national level amongst the Nordic countries. In some cases, this reflects the novelty of this area of law, whilst in others there appear to be more profound questions as to whether the principle will actually receive legal recognition in the near future, perceived, as it is, rather as a purely political principle. There is accordingly a possibly paradoxical situation where the precautionary principle does indeed influence political actors and policy makers (perhaps even in a broader range of areas than is the case at the European level) but does not itself enjoy clear and unequivocal legal recognition.

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