Abstract
The precautionary principle is one of the most contentious principles in contemporary international legal developments. The very fact that it is a principle of international environmental law has been questioned by many legal scholars. However, this does not take away the fact that the precautionary principle continues to be applied widely across sectors both internationally and nationally. The nature and scope of its application has varied widely according to the context and sector within which it has been applied. The central issue which this article seeks to address is the regulatory and the policy making space that is available to the Government of India in the context of the obligations as undertaken under the Cartagena Protocol and under various other international treaties. The regulatory space would also be affected by the domestic legal developments across sectors in which the principle has been applied. India’s recent decision on the large-scale commercialisation of Bt-Cotton has already created much debate regarding its appropriateness given the realities of Indian farm practices. More specifically, it has also led to a rethinking of the role and application of the precautionary principle in addressing these realities. Considering that the Indian policy on biotechnology is currently being drafted, it is important to look into the scope of applying the precautionary principle in taking any decision on genetically modified organisms (GMO) in terms of their distribution of risks, incorporating the social and equity impacts of such decisions.
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Notes
This is because in India the GM regulatory regime is constructed and operative within the larger legislative framework of environmental protection. The 1989 Rules for Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms Genetically Engineered Organisms or Cells, are made under Sections. 6, 8 and 25 of the Environmental Protection Act 1986.
Most recently this has been the stated position of the United States in its arguments submitted to the Panel of the EC-Biotech case (WT/DS291/INTERIM).
Treaty on European Union, Title(2), Official Journal C 191, 29 July 1992.
See ILA Resolution 3/2002: New Delhi Declaration of Principles of International Law Relating to Sustainable Development, in ILA, Report of the 17th Conference (n.d.) Retrieved December 10th, 2005 from http://www.cisdl.org/pdf/ILAdeclaration.pdf
Rio Declaration on Environment and Development (1992). UN Conference on Environment and Development, Retrieved December 10th, 2005 from http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=78&ArticleID=1163
The Vienna Convention for the Protection of the Ozone Layer.(n.d.). Retrieved October 17th, 2006 from http://www.unep.ch/ozone/vc-text.shtml
The Montreal Protocol on Substances that Deplete the Ozone Layer.(n.d.). Retrieved October 17th, 2006 from http://ozone.unep.org/pdfs/Montreal-Protocol2000.pdf
Ministerial Declaration of the International Conference on the Protection of the North Sea.(n.d.). Retrieved October 12th, 2006 from http://www.intfish.net/docs/1984/nsc/nsc1.htm
Scholars like Sands (2003), have argued that this could be interpreted to justify the application of the principle on economic grounds (i.e. of future costs).
Bergen Ministerial Declaration on Sustainable Development in the ECE Region, in Action for a Common Future, Report on the Regional Conference at Ministerial Level on the Follow-up to the Report of the World Commission on Environment and Development in the ECE Region.
The Bergen Declaration sought to implement an ecosystem approach to planning and regulation of human activities in the North Sea.
The United Nations Framework Convention on Climate Change.(n.d.). Retrieved November 24th, 2006 from http://unfccc.int/resource/docs/convkp/conveng.pdf
Bamako Convention on Hazardous Waste. (n.d.). Retrieved November 24th, 2006 from http://www.ban.org/Library/bamako_treaty.html
The Bamako Convention seeks to provide for strong regulatory action in the context of transboundary movement of hazardous waste and also its production and disposal domestically.
See supra note 4.
Treaty of Amsterdam amending the Treaty of European Union, The Treaties Establishing the European Communities and Related Acts, Official Journal C 340, 10 November 1997.
Treaty of Rome establishing the European Economic Community, signed on 25 March 1957. Document available from http://eur-lex.europa.eu/en/treaties/treaties_founding.htm
Nuclear Tests (New Zealand vs. France) (Interim Measures), ICJ Reports. (1973); (Jurisdiction), ICJ Reports (1974).
The ruling of the ICJ however did not allude to these arguments.
Dissenting Opinion of Justice Palmer (Ad Hoc) ICJ CR/95/20; Also opinion of Justice Weeramantry in the same case.
Gabcikovo-Nagymaros (Hungary vs. Slovakia), ICJ Reports (1997). The case involved suspension by Hungary the works on construction of the Gabcikovo-Nagymaros barrage system, for which it was responsible under a Treaty signed with Slovak Republic.
Southern Bluefin Tuna Cases (Provisional Measures) (1999) ITLOS.
Ibid., para. 77.
Ibid., para. 80.
The MOX Plant Case (Ireland vs. United Kingdom), (Interim Measures), ICJ Reports (2001).
MOX refers to mixed oxide. It is a process of re-using plutonium residues left over from nuclear fuel waste, which is then combined with uranium and used as a new fuel source. Refer to http://news.bbc.co.uk/1/hi/uk/1643435.stm (accessed 19th November 2006) for more information.
The Tribunal refrained from commenting on whether circumstances had warranted the application of the principle.
Para. 84 of the Provisional Order; MOX Plant Case.
WT/DS26/AB/R and WT/DS48/AB/R: Appellate Body Report: EC Measures Concerning Meat and Meat Products (Hormones); 1998.
Agreement on the Application of Sanitary and Phytosanitary Measures; Annex IA Marrakesh Agreement Establishing the WTO; April 1994; Retrieved on 25th November, 2006 from http://www.wto.org/English/tratop_e/sps_e/spsagr_e.htm Note that “SPS” stands for Sanitary and Phytosanitary Measures.
Within the WTO Dispute Settlement Mechanism, the Panel refers to a 3/5 member ad hoc expert group which makes the first ruling and which may be approved by the DSB. Appeals based on points of law can be referred to the Appellate Body (AB) which is a permanent body consisting of seven members. Each appeal is heard by three members of the AB. The DSB has to also endorse the AB ruling prior to seeking implementation.
EC-Hormones, supra note 32, para. 28.
WT/DS135/AB/R: Appellate Body Report: European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, 2001.
WT/DS291, WT/DS292 and WT/DS293 refers to the separate complains filed by US, Canada and Argentina respectively—which however the WTO Panel considered to be one dispute essentially. (Panel Report).
Ibid., Panel Report, para. 4.543.
Ibid., para. 7.74.
It is interesting to note that this finding was expressly criticized in the Study Group Report on the fragmentation of international law (ILC 2006).
Supra note 37, Panel Report, para. 7.88.
See supra Note 35.
Supra note 37, Panel Report, para. 7.89.
Article 5(7) of the SPS Agreement; states that “[i]n cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members”.
WT/DS76/AB/R.
Annex A (4) of the SPS Agreement deals with Risk Assessment: “The evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs”.
Safeguard measures by the EC Member States are allowed under Article 12 of Regulation 258/97 and Article 23 of Directive 2001/18. See Official Journals L 43, 14 February 1997 and L 106, 17 April 2001.
However, it does not automatically follow that the Protocol allows a country to take a precautionary measure ad infinitum.
1991(1) SCALE 472.
A pristine ecologically fragile coastal region in the state of Maharashtra, India.
AIR 1996 SC 2715.
The Constitution of India. Text available at http://lawmin.nic.in/coi.htm
AIR 1999 SC 812.
It is a legal fiction in common law where the court looks at how the given activity will affect an average person. For a general definition see Black’s Law Dictionary (West Publication Co.).
Water (Prevention and Control of Pollution) Act, 1974. Available at http://indiacode.nic.in/
Air (Prevention and Control of Pollution) Act, 1981. Available at http://indiacode.nic.in/
The Wednesbury principle means that only an administrative decision that is unreasonable to an extreme degree can be brought under the legitimate scope of judicial review. The principle is generally considered as a reason for courts not to interfere in administrative body decisions. Non-applicability of the principle would imply that courts will be less hesitant in interfering in such decisions.
Research Foundation for Science Technology and Natural Resources Policy v. Union of India and Another, WP 657/1995; http://www.keralapcb.org/laec/New%20Folder/HWM%20-%20Supreme%20Court%20Order.pdf accessed on 20th October 2006.
National Environmental Policy 2006; http://www.envfor.nic.in/nep/nep2006.html accessed on 17th October 2006.
National Conservation Strategy and policy statement on environment and development (1992); http://envfor.nic.in/divisions/csurv/csps.doc accessed on 17th November 2006.
National Biotechnology Development Strategy (Draft) 2005; http://dbtindia.nic.in/biotechstrategy.htm accessed on 17th November 2006.
Article 26 of the Cartagena Protocol on Biosafety.
http://www.grain.org/research/contamination.cfm?id=167 accessed on 17th October 2006.
Licencee company for the introduction of Bt-Cotton.
A New Delhi based NGO.
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Chowdhury, N., Sabhapandit, S. The legal regime for application of the precautionary principle in India: future directions for the GM regulatory regime. Int Environ Agreements 7, 281–300 (2007). https://doi.org/10.1007/s10784-007-9047-1
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DOI: https://doi.org/10.1007/s10784-007-9047-1