The precautionary approach and the international control of toxic chemicals: beacon of hope, sea of confusion and dilution.

• Author: VanderZwaag, David. L.

1. INTRODUCTION II. BEACON OF HOPE III. SEA OF CONFUSION A. Definitional Generality B. Definitional Variations C. Uncertainty in Terminology D. Wide Spectrum of Precautionary Measures E. Differing Academic Views F. Limited Interpretations by International Tribunals IV. SEA OF DILUTION A. Rotterdam Convention B. Stockholm Convention on POPs C. Strategic Approach to International Chemicals Management V. CONCLUSION: ENVISIONING PRECAUTIONARY FUTURES. VI. POSTSCRIPT I. INTRODUCTION

   Toxic chemicals in the environment are a continuing concern. Nearly 80,000 chemicals are on the market in the United States; (1) of those, 200 synthetic chemicals are found in measurable quantities in the bodies of Americans. (2) More than 5 billion kilograms of toxic pollutants are released or transferred each year in North America. (3) Even more alarming, basic toxicological information is lacking for most these chemicals. (4)

   Long-range transport of persistent organic pollutants (POPs), chemicals that are persistent and bioaccumulate, is a special concern particularly in the Arctic, which acts as a "sink." (5) Examples of POPs include various pesticides, such as DDT, chlordane, aldrin, heptachlor and toxaphene, industrial chemicals such as PCBs (polychlorinated biphenyls), and unintentional byproducts such as dioxins and furans. (6) Even commonly used chemicals, such as brominated flame retardants and fluorinated compounds (used as stain repellants and as non stick surfaces on cookware) have found their way into Arctic food webs. (7) In total, about 4300 organic chemicals, most having low or unknown levels of production, are thought to have Arctic bioaccumulation potential, while over 120 industrial organic chemicals and pesticides are considered high-production volume (greater than 1000 tons/year) and have been identified as having POP characteristics. (8)

   Elevated levels of POPs in both Arctic wildlife and human residents raise serious health concerns. Polar bears with high levels of contaminants may suffer adverse effects in reproduction and in their immune systems. (9) Inuit mothers have been found to have two to eight times the level of various environmental contaminants in their blood compared to mothers living in the South. (10) While it is difficult to precisely determine the effects on human health due to varying socioeconomic and lifestyle conditions, potential chemical synergies, limited toxicity studies, and a range of other factors, several subtle effects (immunological, cardiovascular and reproductive) have been identified by epidemiological studies in the Arctic. (11)

   The precautionary approach, often used interchangeably with the term precautionary principle, has been heralded as perhaps the most fundamental norm of international environmental law to better protect the environment from the threats of toxic chemicals. (12) Precaution captures common sense notions evident in many cultures like "an ounce of precaution is worth a pound of cure" and "better safe than sorry." (13) Precaution provides critical guidance for making environmental decisions where there is scientific uncertainty as to environmental effects of a proposed use or activity. Decision-makers following the precautionary principle are to err on the side of caution. (14) The precautionary principle/approach is well established, as it has been embraced in over fifty international, legally-binding agreements and over forty non-binding instruments. (15)

   This Paper, through three images, highlights the rather uneasy relationship between the precautionary approach and the international control of toxic chemicals. First, the "beacon of hope" aspect of precaution is described whereby various strong versions, such as a reversal in the burden of proof, offer to help avoid the shoals of chemical harms to the environment and human health. Second, the "sea of confusion" is briefly navigated with a review of six confusing currents including definitional generalities and variations. Third, the "sea of dilution" reality in global conventions and initiatives, aimed at controlling toxic chemicals, is emphasized, in which precaution is marginalized or adopted in "watered down" forms.

2. BEACON OF HOPE

   The precautionary approach, while subject to considerable controversy and even some antagonism over its potential to thwart innovation and a balanced weighing of all risks, (16) has been hailed by many non-governmental organizations (NGOs) and authors as a powerful beacon for avoiding significant harm to the environment and human health. (17) Various strong versions of precaution have been advocated, with one of the strongest beams reversing the burden of proof. The burden of proof requires those who propose certain risky activities to demonstrate some standard of safety or acceptability, such as no significant damage to the environment or no serious or irreversible harm. (18) Shifting the burden of persuasion and production of scientific information is viewed as leveling the playing field and ensuring a cautious approach is taken in authorization processes. (19) Other strong rays of precaution include banning activities deemed by society to be too risky (20) and adopting a "reverse listing" approach whereby only substances listed as safe can be manufactured or marketed. (21)

   Adoption of stronger versions of precaution at the global level has been very limited, but some examples do stand out. In the field of international fisheries, the global community has adopted a precautionary moratorium on the use of long driftnets (22) and has encouraged the precautionary closure of vulnerable marine ecosystems to bottom fishing in areas beyond national jurisdiction. (23) The 1996 Protocol (24) to the London Convention (25) has embraced a precautionary reverse listing approach to ocean dumping. (26) Only wastes listed on a global "safe list" may be considered for dumping at sea, such as dredged material, sewage sludge, fish wastes, and inert, inorganic geological material. (27) Proposed dumping of those "acceptable wastes" is constrained even further by precautionary requirements, such as waste prevention audits to see if reuse or recycling is practical. Another requirement prohibits government officials from authorizing ocean disposal where waste is so poorly characterized that its potential impact on human health and the environment cannot be assessed. (28)

   Strong versions of the precautionary principle have been specifically urged for application to chemical regulation. Placing the burden on industry to undertake further toxicological research for existing chemicals and adopting a reverse listing approach to new chemicals have been suggested as the path forward at the global level. (29) Legislating precautionary research requirements and shifting the burden of proof to chemical manufacturers has also been advocated for national implementation in the United States. (30)

3. SEA OF CONFUSION

   The precautionary principle, having given rise to extensive and perplexing literature, remains confusing on a range of fronts. (31) Six slippery aspects stand out: definitional generality, definitional variations, uncertainty in terminology, the wide spectrum of precautionary measures available, differing academic views on implications, and limited interpretations by international tribunals.

   1. Definitional Generality

      Definitions of the precautionary principle are extremely vague and the challenge of generality is exemplified in the most widely accepted international articulation of the principles. Principle 15 of the Rio Declaration (32) provides:

      In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. 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. Such a definition leaves considerable room for differing interpretations. Terms brimming with uncertainty include state capabilities, serious or irreversible damage, lack of full scientific certainty and cost-effective measures. The Rio version has been described as a "utilitarian compromise" and does not represent a clear clarion call for strong measures. (33)

   2. Definitional Variations

      With the precautionary principle evolving over many decades through scores of international documents and agreements, it is no surprise that wide variations exist in how the principle is framed. For example, some formulations of the precautionary principle suggest triggering precaution when a human activity may cause significant harm to the environment, (34) while the Rio Declaration and other international declarations and agreements set a triggering threshold of serious or irreversible damage. (35) Whereas the Rio Declaration calls for "cost-effective" measures to be taken in the name of precaution, the Convention on Biological Diversity (36) does not include such a cost-effective limitation. The Preamble states: "Noting also that where there is a threat of significant reduction of loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat ..." (37)

   3. Uncertainty in Terminology

      Debate has occurred over whether there is a difference between the terms precautionary principle and precautionary approach. Some writers have treated the terms as interchangeable, (38) and the Rio Declaration itself refers to Principle 15, which calls for application of the precautionary approach. Some States have preferred the term precautionary approach because it is seen as denoting a flexible and non-binding nature. (39) The Food and Agriculture Organization has consistently preferred the term "precautionary approach," as it is viewed as avoiding extreme interpretations (such as burden of proof shifting) that accompany the term "precautionary principle," and...