The precaution principle is initially a philosophical principle, officially ratified in 1992 in the convention of Rio.

Although there is no universally allowed definition of the precaution principle, one can be based on the statement of the French law of 1995:

the absence of certainty, taking into account the scientific knowledge and techniques of the moment, should not delay the adoption of effective and proportioned measurements aiming at preventing a risk of serious and irreversible damage at a cost economically acceptable

One can bring closer this reasoning to a Paralogisme of “the slipping slope” doubled of one “call to ignorance” ( argumentum AD ignorantum ) socially accepted.

This philosophical principle existed with various degrees in the charters and international conventions as in national laws. They are the fields of health and the environment (for example the question of climate warming) which provides the main part of the subjects of concerns “serious” and “irreversible”, and thus of the matter of application of this principle.

Prevention and precaution

Two essential concepts:

• the prevention aims at the Risque S proven, those whose existence is shown or known empirically (sometimes even rather known so that one can estimate the frequency of occurrence of it). Examples: the nuclear risk, the use of products such as the Asbestos for example. Uncertainty does not relate on the risk, but to its realization.

• the precaution aims at the hypothetical risks, not yet confirmed scientifically, but of which the possibility can be identified starting from empirical and scientific knowledge. Examples: the development of the genetically modified organizations, emissions of the cellphones, etc

Evolutions

The emergence of the precaution principle in the field of the environment

European and world history

As of 1972, the World conference on the environment of Stockholm organized within the framework of the the United Nations posed the first rights and duties in the field of safeguarding of the environment. Thus, principle 9 of the declaration of Stockholm states: “The man has a basic right with freedom, the equality and satisfactory living conditions, in an environment whose quality enables him to live in dignity and the wellbeing. He has the solemn duty to protect and improve the environment for the generations present and future”.

The modern first steps of the precaution principle come from Germany, in the current of the Années 1970: Vorsorgeprinzip (“principle of precaution”). In order to encourage the companies to use best the techniques available, without putting in danger the economic activity, this principle encourages to take measures against pollution before having scientific certainty on the damage caused with the environment. As of years 1984,1987 and following, international official texts make of it mention in the countries of Northern Europe.

But it is during the Sommet of the Earth at this meeting in Rio de Janeiro in June 1992 that this principle profits from a planetary recognition (point 8 of the preamble to the convention of Rio on biological diversity).

Into the history of European construction, the precaution principle is introduced with the Traité of Maastricht (Article 130R become 174 with the Treaty of Amsterdam):

“the policy of the Community aims at a high level of protection. It is founded on the precaution principle and of preventive action, on the principle of correction, by priority with the source, of the attacks to the environment and on the principle of the pollutant - payer. ”

The precaution principle evolves thus of a philosophical design to a legal standard.

The European commission, in its communication of the February 2nd 2000, on the recourse to the precaution principle, defines guiding lines thus:

• the precaution principle can be called upon only on the assumption of a possible hazard, it cannot in no case to justify an arbitrary decision making. The recourse to the precaution principle is thus justified only when three prerequisites are filled:

• identification of the potentially negative effects,
• the evaluation of the scientific data available,
• extent of scientific uncertainty.

• measurements resulting from the recourse to the precaution principle can take the form of a decision to act or not to act. When to act without awaiting more scientific informations seems the appropriate response, this action can take various forms: adoption of suitable legal documents for a jurisdictional control, financing of a research program, information of the public as for the negative effects of a product or a process, etc

• Three specific principles should guide the recourse to the precaution principle:

• the implementation of the principle should be founded on a scientific evaluation as complete as possible. This evaluation should, as far as possible, determine with each stage the degree of scientific uncertainty;
• any decision to act or not to act under the terms of the precaution principle should be preceded by an evaluation by the risk and potential consequences by the absence by action;
• as soon as the results of the scientific evaluation or the evaluation of the risk are available, all the interested parts should have the possibility of taking part in the study of the various possible actions.

• In addition to these specific principles, the general principles of a good management of the risks remain applicable when the precaution principle is called upon. They are the five following principles:

• the proportionality enters measurements taken and the required level of protection;
• the non-discrimination in the application of measurements;
• the coherence of measurements with those already taken in similar situations;
• the examination of the advantages and the loads resulting from the action or the absence of action;
• the re-examination of measurements in the light of the scientific evolution.

In France

the law n° 76-629 of July 10th, 1976 relating to protection of nature thus affirms in its article first that “the protection of natural spaces and the landscapes, the safeguarding of the animal species and vegetable, the maintenance of biological balances in which they take part and the protection of the natural resources against all the causes of degradation which threaten them are of general interest”. It is the law Barnier 95-101 of reinforcement of the environmental protection which registered the precaution principle in the internal rights. It is about the principle “according to which the absence of certainty, taking into account the scientific knowledge and techniques of the moment, should not delay the adoption of effective and proportioned measurements aiming at preventing a risk of serious and irreversible damage to the environment, at a cost economically acceptable”.

In February 2005, the French Parliament registered in the Constitution the Charte of the environment, consequently installing the precaution principle on the highest level of the Hiérarchie of the legal standards:

“When the realization of a damage, although dubious in the state of the scientific knowledge, could affect in manner the serious and irreversible environment, the public authorities will take care, by application of the precaution principle, and in their fields of attribution, with the implementation of procedures of evaluation of the risks and with the adoption of temporary measures and proportioned in order to avoid the realization of the damage” (article 5).

The Committee of the prevention and the precaution ( CP ) (instituted by the ministerial decree of July 30th, 1999) has 3 main missions

• contributes to better basing the policies of the Ministry in charge of the environment on the principles of prevention and precaution;
• exerts a function of day before, alarm and expertise for the health issues related to the disturbances of the environment;
• establishes the link enters, on the one hand, the research actions and the scientific knowledge and, on the other hand, the lawful action.

Extension to the public health and the food

Recent crises (contaminated blood, increasing research of the penalization of the faults of the economic, political and administrative persons in charge, the mad cow, etc) deeply made evolve/move the field of application of this concept.

The stop of the Court of justice of the European Communities in the business of the Mad cow in 1998 illustrates this evolution. This one indeed débouté the British government which disputed the embargo taken in March 1996 on the reasons “which it must be allowed that, when uncertainties remain as for the existence or with the range of health risks of the people, the institutions can take protection measures without having to wait until the reality and the gravity of these risks are fully shown. ” This principle was taken again in September 2001 in a “European draft Regulation” aiming at the food legislation and which recognized in substance the precaution principle in its article 7.

In addition, the agreement to the medical and plant health measures concluded within the framework from the World Trade organization (OMC) authorizes a Member State to take measures as precaution if he considers that there do not exist sufficient scientific evidence making it possible to make a definite decision about the harmlessness of a product or safety of a process. N the other hand, the State must engage of the scientific research in order to raise the uncertainty which justifies its precautions within a reasonable delay:

“If the relevant scientific evidence is insufficient, a member will be able temporarily to adopt measures Sanitaire S or plant health on the basis of relevant information available, including those which emanate from the qualified international organizations as those which rise from medical or plant health measurements applied by other members. In such circumstances, the members will endeavor to obtain additional information necessary to carry out a more objective evaluation of the risk and will consequently examine medical measurement or Phytosanitaire within a reasonable delay. ”

This principle then hardened in France. The precaution then became “maximum” or “absolute”, tending towards a “absolutely minimum risk”… Some could draw from it the conclusion which the principle was a rule of abstention: it was necessary to do everything to avoid the least risk. And even if one can have reserves justified on the approaches catastrophists, it should be recognized that the man has to become to it world between his hands. To think this innovation and to find there an inspiration effective for the political decision and economic are a current requirement. The precaution is not a simple technique of prevention of the risks.

Lastly, the current popularity of the precaution principle led to a certain confusion, insofar as

• the authorities frequently called upon the “precaution principle” in connection with actions of ordinary “prevention” as one applies decades since of them even centuries (such as forty or than a disinfection).
• they also called upon this principle in connection with actions with purely media purpose, with an aim of reassuring the population (for example food destruction or the demolition of animals which one knows that they are healthy, but that the media rumor associated at the risk).

But these unslung applications which are made precaution principle in context of crisis, as those which are refused when it would be really convenient to make it, show that the use of this principle is still immature.

Approaches known as “catastrophists”

It is the design of Hans Jonas according to which the men must be made the guards of humanity and must require risk zero to lead to the Apocalypse.

Taking into account uncertainty structural on the remote consequences of our actions, the only possibility of an apocalyptic end must be enough to put at the variation a suspected action: no consideration of probability or plausibility must intervene here. This rule is included in certain positions according to which “a decision maker does not launch out in an action that if it is certain that it does not involve any environmental or medical risk” for example.

The detractors of the precaution principle present it like a rule of abstention, estimating for example that in a complex universe, it would amount approaching damage zero as much as possible, with a skew sometimes mathematically illustrated by the Paradoxe of Ellsberg (within a framework of reference focused on the damage, the taking into early account of a risk mechanically moves the center of gravity of this damage towards an aggravation). Within the framework posed, the damage which collects the attention is not necessarily most important, whatever the moment of the taking into account of the risk. On the other hand, the possible scenarios multiply with the precocity of this taking into account. The scenario of possible can then open only side of the aggravation of the damage).

In the taking into account of the worst scenario, this effect would be Net. It would be the precocity of the taking into account of the risk which would cause by itself an aggravation of the perceived risk and would require a greater severity of the measures of precaution. And consequently, in the vicinity of ignorance, all would be possible, which the worst catastrophes and it would systematically be necessary to abstain from doing everything. Thus, to the extreme, any innovation, considered in an early way, should be isolated. It would be an attitude preserving, tending to the maintenance of the status quo and typical of the Resistance to change and the Aversion to the uncertainty, which in extreme cases would generate its own risks by nonadaptation to the evolutions. The conclusion is binding to the detractors of the precaution principle: it is not more reasonable to require certainty on the absence of a damage before authorizing an activity or a technique that it would not be it to require certainty on the existence of a damage to start to take preventive measures. The precaution must be invented in between two limited by these two extremes.

The prospectivist Jean-Jacques Solomon note that the Forty was the first effective means of blocking the epidemic S, and that it preceded comprehension by the nature of the phenomenon of Contagion. he proposes that the precaution principle is a kind of forty with certain innovations or certain activities, by taking of account the irreversibility of their nonforeseeable effects, which is to join again with the ancient prudence, whose Aristote said that it does that which practices it not timorous, but on the contrary “valorous”.

Exaggeration of the principle

According to certain authors, the misused precaution principle can lead to useless blockings, which can delay the countries which apply it in the way of the Technological advance. In the preachers of the apocalypse , Jean de Kervasdoué declares as follows:

To be careful, to analyze the risks to try to avoid them, wise councils constitute; but to have made precaution a principle is a drama: it is not a question any more of trying to analyze probable evolutions, taking into account information available, but to imagine the iréel, the unthinkable one, under pretext which the caused damage could be important.

Cécile Philippe of the economic Institut Molinari regrets for its part that with the precaution principle one considers only the possible hazards in the event of application of progress and that it one is unaware of the costs not to apply it progress .

Fields of application of the precaution principle

The precaution principle is not a solution with scientific uncertainty, it is about a regular interactive process between action and knowledge. It is not a question either of a rule, the precaution principle provides abstract reference marks which do not make it possible to avoid requesting the judgment on a case-by-case basis.

It posts a value: it is good to be concerned in an early way of hypothetical risks with serious damage with an aim of preventing them and gives directions to the preventive action: should be sought effective and proportioned measurements.

To note that the precaution principle does not consist in showing more prudence in the prevention, even with becoming précautionneux, but seizing in an early way of possible hazards. In an identical way, the precaution concerns a general step of prevention (with respect to a proven risk and whose only realization is random) and consists in securing possible consequences of a disaster, it is the case of the contracts of insurance.

Two terminals mark out however the scope of application relevant of the precaution principle: at an end, it there with obtaining a certainty on the existence of the risk, at the other end it there with ignorance. If one can agree that in ignorance one will not act in the field of the risk management, it is not less true than there exist common rules with the precaution principles and of prevention: to identify, evaluate and graduate the risk.

In the absence of certainty on the basic phenomena and the existence of the danger, the risk is hypothetical. However, although not proven, that does not mean that it can be regarded as far from probable, even negligible. It is about an identified possibility of risk of which one does not know the probability precisely.

Consequently, the field of application of the precaution principle is potentially unlimited.

Responsibility: company, policy and legal

Political aspect

The precaution principle causes to transfer the decision from the taking risk from the contractors towards the political decision makers.

The latter are by definition irresponsible since they do not engage their own resources, they have a skewed vision of the risk which pushes them to avoid to the maximum any situation which could make fall their popularity and compromise the continuation of their career. However, there are dissymmetry between innovation and absence of innovation: in the first case, the possible negative consequences will flash back on the political decision makers. In the second case, the shortfall due to the prohibition of the innovation will not be seen. Consequently, the political decision makers will have a tendency natural to block innovations more and more, with the pretext which they could be risky (what is the case, by definition, of any innovation). In practice, the precaution principle thus causes a lawful inflation and a stagnation of the level of use of the innovations by the population.

Lastly, the committees of scientists authorized, charged with giving an opinion on the risks of such or such activity or innovation, are carried to justify their existence by discovering reasons for prohibition unceasingly; effect counterbalanced by the scientific community even which seeks and studies these innovations.

In France, the regulation concerning the emissions of the cellphones in the name of the precaution principle proved very expensive. However, certain current studies cancel any correlation between use of the cellphone and problems medical.

Legal difficulties as for the application of the principle

One saw higher than the precaution principle does not give specific rules but defines rather a framework of actions making it possible if necessary to face dubious situations, or say of unsolved risk (with the direction or the existence even of the risk neither is proven nor cancelled). One can say that the precaution principle belongs to the right says “soft” ( software law ), in opposition to the “hard” right ( hardware law ) which defines situations, acts to be condemned, etc It is not, moreover, the only legal difficulty raised by the precaution principle.

Another difficulty comes from the dynamic nature par excellence of the measurements suggested by an approach of precaution. Thus, the fact even as the risk is unsolved means that any scientific progress on the matter will specify the consequences and the plausibility of the risk. Measurements taken - or not taken - relative at this risk will have consequently to be adjusted according to new perceived severity. One imagines the practical difficulty to create laws which by nature must be adjustable constantly, and on external criteria with the scientific body (since the adjustments will be guided by projections coming from the scientific body).

The precaution principle, in practice, is often expressed by an inversion total or partial of the burden of proof, the plaintiff requiring of the creator of the possible hazard to prove the harmlessness of the product where action. It is understood that this can lead to drifts by blocking very new product and any progress. Consequently, the public authority must make sure that the precaution principle, in its practical application, leads only to one inversion partial of the burden of proof, i.e. the plaintiff - or public authorities possibly - will have with responsibility of prove that there exists a real scientific uncertainty. To define when there is and when there is not uncertainty remains total however and shows that we do nothing but defer part of the problem by supporting us on qualities of appreciations of the judge.

The problems concerned with the precaution principle are often by nature of the international problems. For example, climate warming, the dissemination of the GMO or the conflict franco-néo-zélandais on the atomic tests are problems which emerged because their consequences can be potentially important by their international aspect: the actions of some have effects on the quality of the life of others. There is an immense difficulty to find international agreements on the problems involved in the precaution principle for this reason: all the countries do not have the same exposure to the possible hazard, nor the same exposure to the consequences - often financial - possible measurements. Moreover, there exist often differences in appreciation as for the nature even of the precaution principle, like highlighted it the conflict between the USA and Europe in front of OMC, about ox with the hormones. OMC finally sliced in favor of the USA while asserting that the risk had not been proven by Europe. It is clearly a design of the precaution principle different from the traditionally allowed design in Europe, in which the USA should as have tried to show as residual uncertainties are either non-existent or too hypothetical to be considered.

Lastly, the legislator and the judge will have generally extremely to make to integrate the scientific consequences most recent in their devices and their judgments. Indeed, by definition of the situations in which the precaution principle applies, the scientific knowledge will be those located at the border of the knowledge and the point of research. There is thus extremely to bet that these scientific developments will be difficult to reach to the uninitiated person.

Alternative approaches of the risks concerned with the precaution principle

The theory of the risk and the precaution principle

In many branches of industry (banks, insurance, industry, etc), the theory of the risk is largely used to manage random situations (return of an investment, historical probability of an event for example). However, the precaution principle finds its justification in situations of scientific uncertainty and damage potentially irreversible. There are thus two basic differences between the traditional applications of the theory of the risk and the field of application of the precaution principle:

1. the precaution principle corresponds typically to events which one cannot probabiliser,
2. the consequences of these potential events can be very important (in opposition to the risk of bankruptcy of a company for example). The attacks with health or for the human life, or for the environnememt, in general, are indeed often regarded as much more serious than the economic risks.

Consequently, the application of the theory of the risk seems compromised in an approach of precaution. There exist many research tasks (see Treich or Gollier for example) which seek to justify the use of the precaution principle by using systems of dynamic decisions where the value of information arriving with time makes it possible to specify knowledge and the probabilities. They thus manage to prove that the precaution principle is also a principle of flexibility, where it exists sometimes of the value in the fact of awaiting information (scientific) to act or take measures.

The precaution principle and scientific progress

The precaution principle is often criticized as a principle which is opposed, by definition, with scientific progress. If it is true that certain justify the precaution principle like a means of abstaining from in the doubt, which leads to this objection on behalf of the opponents with the precaution principle, nevertheless the precaution principle is based on scientific progress to decide actions to take and procedure to follow. The protocol of Kyoto for example, was very largely written starting from the conclusions of an group of expert, the IPCC ( Intergovernmental Panel one Climate Change ) (in French: GIEC), selected for their diversity of opinions, competences, and country of origin. The IPCC continues its work today, in order to continuously improve knowledge on the mechanisms of change of the climate. Thus, the precaution would tend - in this precise case at least - to draw knowledge and scientific progress.

One of course foresees the need for a research objective and as contradictory and multi-field as possible, in order to ensure a legitimacy and a force the conclusions of the body of research. Without this requirement of exhaustiveness and taking into account of the minority opinions, there are strong chances that research becomes partisane or at least skewed and badly accepted by the policy and the population. Remain the recurring problem of the minority opinions. If science does not have the role to maintain the polemic, it is however necessary to insert the minority opinions particularly in a situation of uncertainty, as long as the consensus is not total or quasi-total between the scientists. The rule often selected (see for example Kourilsky) is that an opinion, even minority, founded on a step mainly recognized as valid must be retained.

Lexicon and Definitions

• unknowable Risks (risk of development): principle of exemption ;

• suspectés Risks: precaution principle ;
• proven Risks: principle of prevention;
• Risks carried out: principle of repair.
• imaginary or exaggerated Risks (phobias): principle of status quo

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