Environmental Law Review

The Precautionary Principle in EC and WTO Law: Searching for a Common Understanding

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Abstract

This paper briefly examines the meaning of the precautionary principle in international law, and summarises the main trade liberalisation provisions in EC and WTO law before analysing and comparing the jurisprudence of the European Court of Justice and the Appellate Body on the use of the precautionary principle by Community institutions, EC Member States and WTO Members. The author concludes by examining whether it is possible to identify a common, trade-related approach to the precautionary principle.

 

INTRODUCTION

The precautionary principle is intended to prevent scientific uncertainty being used to justify inaction in the face of potentially serious threats to the environment. It is also one of the great puzzles of international law. Some argue that the principle imposes a positive obligation to act as soon as a plausible threat is identified; others maintain that it is not a legal principle at all but only a policy guideline to be taken into account along with many other policy factors(1). In any case, there has been extensive commentary on its normative implications and the principle is employed in a wide range of international instruments including the EC Treaty(2). Even institutions that do not explicitly recognise the precautionary principle, such as the WTO, have found it impossible to ignore.

 

At first glance the EC and the WTO seem to have very different approaches to the precautionary principle, but in practice there is a discernible convergence. The purpose of this article is to consider how that convergence could have arisen notwithstanding the very different starting points in each regime, and to consider the extent to which a particular form of the precautionary principle may be developing according to the demands of trade liberalisation regimes. The EC and the WTO must both ensure the consistency and predictability of trade law and policy and, in both regimes, the resolution of conflicts often lies with tribunals. The case law of the EC and WTO is therefore critical to understanding the impact of the precautionary principle.

 

The first part of this paper briefly examines the meaning of the precautionary principle in international law, and summarises the main trade liberalisation provisions in EC and WTO law. The second part analyses and compares the jurisprudence of the European Court of Justice (‘the Court’) and the Appellate Body on the use of the precautionary principle by Community institutions, EC Member States and WTO Members.(3). The Conclusion examines whether it is possible to identify a common, trade-related approach to the precautionary principle.

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