Free Trade and the Precautionary Principle

AuthorHannes Veinla
Pages186-196

Hannes Veinla

Free Trade and the Precautionary Principle

This article aims to compare the different approaches to the precautionary principle in the European Union and in the United States. Data for comparison have been taken mainly from the Hormones case, which was brought about by the European Communities prohibition of imports of hormone-treated meat and meat products. Both the Appellate and the Dispute Settlement Body of the World Trade Organization ("WTO") were involved in the settlement of the dispute. The case was interesting for several questions which were raised during the dispute - answers to these questions are of cardinal importance in understanding precautionary principle. The following paragraphs seek to throw some light on the possible causes of the difference between the US and the EU viewpoints on the precautionary principle. Reliability of a common belief, according to which the EU is more cautious and caring than the US in matters related to environment and human health, is looked upon too.

1. Trade related environmental measures and precautionary principle

Environmental protection and free trade interrelations have been one of the most disputed subjects during the last decade. Different interest groups have expressed diametrically opposite viewpoints on the matter. Supporters of free trade maintain the opinion that abolishing trade restrictions and the global free trade regime strengthen the world economy and add or liberate resources, which can be used for environmental protection purposes1. It has even been argued that usually trade restrictions, established by environmental protection considerations, serve indeed only as a pretext to enforce unjustified protectionist measures. This standpoint is also supported by several developing countries, which believe that industrial countries make use of environmental regulations2 in order to keep the cheap goods of developing countries off the markets.

Environmental activists claim that free trade stimulates unsustainable use of natural resources and use of technologies harmful to the environment. In addition, globally extending trade relations are instrumental in favour of expanding economic activities of big transnational corporations into the developing countries3, where environmental standards, as a rule, are lower, or do not exist at all, and where the "polluter pays" principle is not applied4. Under these circumstances environmental activists call for establishment of certain corrective instruments in the framework of the WTO - these instruments should not aim at arbitrary obstruction of trade, but at introducing environmental considerations into the trade regime5.

Trade related environmental measures might occur in different shapes. Countries with high environmental protection levels may attempt to apply restrictions on the imports of goods, which do not correspond to the environmental standards in force in these countries. Countries with high environmental awareness might also subsidise their exports to increase the competitive ability of their industry, overburdened by environmental protection regulations. Governments may endeavour to apply different customs tariffs to products, depending on whether the products have been manufactured taking into account environmental protection considerations, or produced polluting the environment and using natural resources in unsustainable ways.

The precautionary principle has often been used in defence of trade restrictions induced by environmental protection considerations. Different countries, international organisations, and the international community have made efforts to find adequate means to protect human health and the environment, even in conditions of scientific uncertainty, for decades already. The traditional approach has always been guided by the principle according to which risk management measures have to be applied only in such cases if danger of potential damage has been satisfactorily proven. The burden of proof has usually been laid not on the developer, but on the community, expecting that the community shall present data on the degree of hazard posed by certain activities or substances. Sufficient evidence however often becomes available only after damage has taken place. The precautionary principle introduces substantial changes into the traditional principles of risk assessment6. The principle has been recognised in international law7 and in national legal orders8 as well, since the 1980s. The precautionary principle prescribes that measures to protect the environment and human health must be taken before conclusive scientific evidence on hazardous effect of certain activities or substances becomes available. The precautionary principle imposes upon developers an obligation to prove that activities carried out by them, or planned to be carried out, do not bring along substantial or irreversible harm to the environment. Hence the principle counterpoises the so-called "wait and see" principle9, according to which precautionary measures can be applied only in cases where scientifically grounded evidence is provided.

The intense "offensive" of the precautionary principle has to be discussed in a wider context also. Social scientist U. Beck, in his book "Risk Society"10, expressed an idea according to which a transition from industrial society - the main concern of which has been the distribution of welfare - to so-called risk society - where attention focuses on the risks (economic, in the first place) of progress - is taking place. Consequently, according to U. Beck's conception, a transformation from distributing welfare to distributing risks - in many cases of indistinct nature - is in progress. This tendency has influenced, and shall influence in the future, political and legal systems very essentially - the centre of gravity moves from production relations of society to risks relations of society. Several political and moral values have to be taken into account in making socially sensitive decisions, under the conditions of scientific uncertainty - this has not been the case in the course of ordinary scientific and economic research and analysis11.

To the above-said has to be added, indeed, that the precautionary approach does not contain in principle anything completely new12. Our common sense tells us, that "it is better to be afraid than to regret (better safe than sorry)" and instructs us "seven times to measure and one time to cut". The precautionary principle has been observed in environmental law too, for a long time already, but in an ad hoc approach, outside any certain legislative and institutional framework.

The question of when and how the precautionary principle should be applied has given rise to extensive political and scientific discussions during which a great variety of different standpoints has emerged. The precautionary principle is presently a subject of discussions in the European Union. The European Commission has issued a Communication on the precautionary principle13. The Communication points out that decision-makers at different levels are constantly faced with the dilemma of balancing the freedom and rights of individuals, industry and organisations with the need to protect the environment. The problem is complicated by the fact that often decisions have to be taken in conditions of scientific uncertainty - certain human activities, or substances used to perform the activity, may be dangerous to the environment, but there is no final proof of the essence and probability of the danger.

The experience of both the European Union and the WTO proves that the precautionary principle and principles of its application have occupied a central stance in the dispute on the interrelations of free trade and environmental protection14. Opinions of WTO Member States on the content and legal status of the precautionary principle differ quite remarkably. EU and US trade conflicts provide clear evidence of this indeed. US and EU interests have conflicted repeatedly in several health and environmental risk management matters15 over the last few years. The fact that the United States has not officially accepted the precautionary principle and has not recognised it as a universal risk management tool has been one of the reasons for the disputes. The Supreme Court of the US has indicated clearly - in the so-called benzene case (Industrial Union Department, AFL-CIO v. American Petroleum Institute, 198016) - that decisions cannot be made merely on an assumptive basis and a state institution has an obligation to prove the presence of an essential hazard17. In Europe, on the other hand, matters of scientific uncertainty are treated more and more in an "unscientific" and discretional way, involving the public18.

2. Hormones case
2.1. Facts

The Hormones case19 - if looking from the angle of the precautionary principle - is undoubtedly one of the most interesting WTO cases. The case dealt with the EC regulation of imports of beef treated with growth promotion hormones. The WTO's Dispute Settlement Body examined the complaints of the United States20 and Canada21 against the EC prohibition of imports of meat and meat products derived from cattle to which either certain natural hormones or synthetic hormones had been administered for growth promotion purposes. The complaints were particularly related to the Council Directive 96/22/EC of 29 April 199622 by which the above-mentioned prohibition was enacted and in which the six prohibited hormones were listed23. The Council Directive was based on the assumption that hormone-treated meat may be a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT