NAME: BUSINGYE
KEITH
FACULTY: LAW
COURSE: LLB
COURSE UNIT: Environmental law.
QUESTION:
(a) Describe the nature, working and effect of the precautionary Principle in
International Law;
(b) Present an argument
for applying the precautionary principle in an application for review of the
decision on behalf of the Save the Albertine Graben Trust in the High Court.
THE
REPUBLIC OF UGANDA
IN
THE HIGH COURT OF UGANDA AT KAMPALA
MISC
CAUSE NO………. OF 2014
IN
THE MATTER OF PETROLEUM (EXPLORATION DEVELOPMENT AND PRODUCTION) ACT NO.3 OF
2013.
AND
IN
THE MATTER OF APPLICATION FOR REVIEW OF AWARD OF A LICENSE FOR EXPLORATION TO
BP plc.
AND
IN
THE MATTER OF SAVE THE ALBERTINE GRABEN TRUST.
To;
THE REGISTRAR OF THE
HIGH COURT,
P.O.BOX…..
KAMPALA.
A
LEGAL OPINION ON CONSIDERATION OF PRECAUTIONARY PRINCIPLE BEFORE GRANTING OF THE EXPLORATION LICENCE TO BP plc.
I humbly submit
my legal opinion to this honorable court for the consideration of the
precautionary principle in the review for the grant of an exploration license
to BP plc for exploration of petroleum in the Albertine Graben in Western
Uganda. The applicant save the Albertine Graben
Trust requests court to consider the arguments raised in support of the
consideration of the said principle.
(a)
The following
amounts to nature, working and effect of the precautionary principle.
Ambassador Van
Lierop defined the precautionary principle as such that is an ecological and
there is no need for conclusive proof as to the effect of the risk.[1] Under
Article 245 of the 1995 Uganda constitution, Government has a duty to protect
and preserve the environment. The exploration of petroleum in the Albertine
Graben is indeed going to affect the natural order of nature, hence the need
for taking into consideration of the precautionary principle as necessity in
carrying out their (BP plc’s) activities in the Albertine Region as illustrated
below.
The
precautionary principle was first encountered on the international law scene in
the mid 1980’s and was especially noticed to arise from the local law of West
Germany as can be observed in the Vorsorgeprinzip in West Germany Environmental
Policy twelfth report of 1988.[2]
In 1960’s,
people began to realize that economic development was damaging the environment and
threatening the quality of life and sometimes even the life of people, for
instance where the use of chemicals such as DDT in agriculture and substances
such as asbestos in constructing houses was concerned. Individual
countries, organizations such as the EEC and the UN began initiating measures,
often of an ad hoc nature. In 1972,
the report to the Club of Rome entitled Limits to growth was published
in which, there was warning that if production and consumption were to develop
further, catastrophes would happen.
Then the UN Conference on the Human
Environment took place in Stockholm, where the
Stockholm Declaration was adopted, a nonbinding set of principles which the
participating states promised to abide by. Principle
21 affirms that states are obliged to
ensure that activities within their jurisdiction or control do not cause damage
in another state or beyond national jurisdiction. Sustainable development
defines development that meets the needs of the present without compromising
the ability of future generations to meet their own needs. However this
principle doesn’t clarify is how much pollution is sustainable, how many fish
can be caught without endangering rights of future generations and how exactly
production and consumption patterns can be made sustainable. In 1992, the UN
convened the UN Conference on Environment and Development in Rio de Janeiro.
Several binding treaties were concluded for instance the convention on Biological Diversity[3]. It is
important to note that various international instruments consistently refer to
the precautionary principle such as the 1992 United Nations frame work
convention on climate change (UNFCCC)[4];
the 2000 Cartagena Protocol on Biosafety[5];
the 1995 Agreement on Fish Stocks[6];
and the 2000 Conservation of Migratory Fish Stocks in the Western and Central
Pacific Ocean[7].
Under
the Rio Declaration .Principle 15 it
is stated that that 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. This principle
in essence addresses problems of environmental decision-making under conditions
of scientific uncertainty. Whereas the principle of preventive action is based
on the recognition of the need to act to prevent certain harm, the
precautionary principle is coupled with the idea of risk avoidance. The mere
existence of a risk of harm is considered a sufficient basis for the adoption
of preventive measures.
The 1982 world charter for nature in its principle 11(b) states that activities
which are likely to pose significant risk to nature shall be preceded by an
exhaustive examination, their components shall demonstrate that expected
benefits outweigh potential damage to nature, and where potential adverse
effects are not fully understood, the activities should not proceed. Therefore it
is my opinion that this principle contains the essential ingredients of
whatever is embedded in the precautionary principle. This is given more effect
under Section 72 of the National
Environmental Act[8],
which is to the effect that decisions must only be made after the necessary
information has been received and evaluated and if found wanting, precautionary
must be exercised.
The
Precautionary principle has been also put into consideration before international
courts. To that effect, the International
Court of Justice (ICJ) in the order 22, September 1995 at page 342, Judge Weeramantry in his dissenting
opinion observed that the precautionary principle was gaining increasing
support as part of the international law of the environment and he added that
adverse effect would result if the precautionary principle is not put into
consideration.
Therefore, it is
my submission that the precautionary principle as illustrated above may have
positive effects.
(b)
Arguments
for the application of the precautionary principle in the review of the
decision of the high court.
The
precautionary principle is more less “caution in advance”, the caution that is
practiced in the context of uncertainty or informed prudence. Two principles
lie at the core of the principle[9].
That is protecting the environment and the future of our children. Therefore by
applying precautionary principle, we protect the environment from the would be
damage and the future of our children and generations to come is secured, hence
the need to take into account the precautionary principle as sought by this
application. Section 72[10]
requires a proper evaluation and necessary information, that is to say,
environmental assessment must be done. The decisions of officials in
environmental aspects must be done in conformity with the rules and regulations.
This means the precautionary principle is a prerequisite before considering any
project affecting the environment. To that effect, this honorable court should
grant this application in review of the license granted to BP plc Company.
An expression of
need by decision makers to anticipate harm before it occurs. Within this
element lies an implicit reversal of the onus of proof. Under the precautionary
principle it is the responsibility of an activity proponent to establish that
the proposed activity will not (or is very unlikely to) result into a
significant harm. Activities that present uncertain potential for significant
harm should be subject to the best technology available, requirement to
minimize the risk of harm unless the proponent of the activity shows that they
present no appreciable risk of harm however activities that present uncertain
potential for significant harm should be prohibited unless proved otherwise. From
the facts at hand the onus is on BP PLC to convince court that the petroleum
exploration in Albertine graben in western Uganda has no significant harm and
that they have used the best technology, available requirements to minimize the
risk of harm.
The concept of
proportionality of the risk involved. This principle’s scope is much wider, and
specifically where the preliminary objective scientific evaluation indicates
that there are reasonable grounds for concern that there are potentially
dangerous effects on the environment, human, animal or plant health may be
inconsistent of the high level of protection chosen for the community[11].
The January 29, 2000 Cartagena protocol on Biosafety provides that lack of
scientific certainty due to insufficient relevant scientific information shall
not prevent the party of import in order to avoid or minimize such adverse
effects, from taking a decision, as appropriate with regard to import of the
living modified organisms in question[12].
The application
of the precautionary principle is hampered by both lack of political will as
well as the wide range of interpretations placed on it. R.B Stewart 2002[13]reduced
the precautionary principle to the basic versions for instance;
Scientific
uncertainty shouldn’t automatically preclude regulation of activities that pose
potential risk of significant harm. It is vital to note that there is a
possibility that the behavior of one single person or factory might be
harmless, but combined with behavior of others the effects might be disastrous.
As far as the introduction of pollutants to the environment is concerned
More so, there is the cumulative effect. In themselves, the introduction might be harmless,
but together with other substances a toxic mix might be formed so regulatory
controls should incorporate a margin of safety, activities should be limited
below the level at which no adverse effect has been observed or predicted.
More so, the irreversibility of some effects of human behavior
may result if the precautionary principle is not put into account. The clearest
example here is the extinction of species. Once a particular animal or plant
species has disappeared, the potential benefits mankind could derive from it is
lost forever.
In my humble
opinion I submit that in deciding how to apply the principle, court my use a
cost benefit analysis that factors in both the opportunity cost in not acting
and in the optional value for waiting for further information before acting.
Strong
precaution holds that regulation is required whenever there is a possible risk
to health, safety or environment, even if the supportive environment is
speculative and even if the economic costs of regulation are high[14].
In 1982, the United Nations world charter for nature gave the first
international recognition for the strong version of the principle suggesting
that when the potential adverse effects are not fully understood, the
activities shouldn’t proceed the widely publicized widespread declaration from
a meeting of environmentalist in 1998 is another example of the strong version
of the principle.[15]Strong
precaution can also be termed as no regrets principle where the costs are not
considered in preventative action.
Weak precaution
holds that lack of scientific evidence does not preclude action if damage would
otherwise be serious or irreversible[16].
Humans practice weak precautions every day and often incur costs, avoid hazards
that are far from certain we don’t walk in moderate dangerous areas at night,
we exercise, we buy smoke detectors, and we buckle our seat belts.
According to a
publication by the New Zealand treasury department the weak version of
precautionary principle is the least restrictive and allows preventative
measures to be taken in the face of uncertainty but does not require them. To
satisfy the threshold of harm, there must be some evidence relating to both
likelihood of occurrence and severity of circumstances. Some but not all require
consideration of costs or precautionary measures. Weak formulations don’t
preclude weighing benefits against the costs.
Factors other
than scientific uncertainty including economic considerations, may provide
legitimate grounds for postponing the action under weak formulations
requirement to justify the need for action (burden of proof) generally falls on
those advocating for precautionary action. No mention is made as a sign of
liability on environmental harm.
Strong versions
justify or require precautionary measures and some also establish liability for
environmental harm which is effectively a strong form of polluter pays. For
instance the earth charter provides that when knowledge is limited, apply a
precautionary approach, place the burden of proof on those who argue that a
proposed activity will not cause significant harm and make the responsible
parties liable for environmental harm. Reversal of the proof requires that
those proposing an activity to prove that the product, processor technology of
sufficiently “safe” before approval is granted. Requiring proof of no
environmental harm before any action process implies that the public is not
prepared to accept any environmental risks no matter what economic or social
benefits may arise[17].
At the extreme, such a requirement could involve bans and prohibitions on the
entire classes of potentially threatening activities or substances (Cooney,
2005). Overtime there has been a gradual transformation of the precautionary
principle from what appears from the royal declaration to a strong form that
arguably acts as a restraint of development in the absence of firm evidence that
will do no harm.[18]
As concerning
the environmental health, Fields typically concerned by precautionary principle
are the possibilities of global warming or abrupt climate change in general,
Introduction of new and potentially harmful products into the environment,
threatening bio diversity for instance genetically modified organisms, Threats
to the public due to new diseases and public for instance AIDS transmitted
through blood transfusion, Long term effects of new technologies for instance
health concerns regarding radiation from cell phones and other electronics,
communication devices, Persistent or acute pollution (asbestos, endocrine
disruptors),Other new Biosafety issues.
The European court of justice (ECJ) also
adopted the precautionary approach particularly in respect of environmental
risks that pose danger to human health. In the case of UK V Commissioner of the EC[19],
court noted that there was great uncertainty as to the risks posed by live
animals, bovine and derived products. Where there is uncertainty as to the
existent of risks to human health, without having to await the reality and
seriousness of those risks to become fully apparent. To this effect, this honorable
court should review the license as granted to the BP plc.
Application of
the principle modifies the status of innovation and impact assessment; it is
not the impact that should be avoided or amended but a potential impact that
should be prevented. Therefore, in the case of regulation of scientific
research there is a third party beyond the scientist and the regulator- the
consumer as observed by the international law on environment. In the case of Sancho Vs Deo Helen GILMOR,
the senior district judge lost in the dismissal of Wagener’s law suit which
included a popular worry that the LHC could cause distraction of health by a
black hole; injury in fact requires a possible threat of harm. Hence the review
of the Minister’s license to BP plc to include and consider the precautionary
principle is inevitable to that effect. It is our submission therefore that
this honorable court be convinced to effect this review basing on this
position.
Generally speaking,
having described and illustrated the nature, working and effect of the
precautionary principle, it is my humble submission that this application
should be put under consideration in reviewing the exploration license granted
to BP plc in the Albertine region, in order to include and consider the
precautionary principle to that effect.
[1]
Sands p. 267.
[2]
Sands p. 267.
[3]
The preamble
[4]
Article 3(3)
[5]
Article 1, 10 and 11
[6]
Article 5(c), 6 and annex II
[7]
Article 5(c)
[8]
Cap.153
[9]
Andrew Jordan & timothy o’Riiodan.
Chapter 3,the precautionary principle: a legal and policy history, in protecting
public health.
[10] National Environmental Act cap. 153.
[11]
The commission of European communities February 2 2000 communication from the
commissioner on the precautionary principle
[12]
Official text of the Cartagena protocol
[13]Sterwart
R.B (2002) environmental regulatory decision making under uncertainty. Research
in law and economics.
[14]
Sachs Noah, M (2011) rescuing the strong precaution principle from its critics
[15]
The paralyzing principle: does the precautionary principle point us to any
helpful direction Goliath business knowledge on demand. December 2002
[16]
Mandel Grogory N Gathi James Thou (2006) cost benefit analysis versus the
precautionary principle; beyond casssunsteins’s laws of fear
[17]
Peterson 2006
[18]
Precautionary principle; origins, definitions and interpretation. Treasury
publication, government of New Zealand 2006
[19]
ICJ case C-180/96
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