The Precautionary Principle: Development of an International Standard

Abstract

This Note characterizes and evaluates the current status of the precautionary principle in international law and suggests how it could be more effectively incorporated into bodies of law such as trade law. Much of the literature focuses on whether the principle is a legal rule. This Note shows that precaution need not necessarily fit into the traditional categories of international legal sources but may derive its legal force from being interpreted as a standard.

The Note argues that the legal status of the principle has evolved from a policy discourse to a binding form. However, the status of the principle as a standard is not necessarily a step on the way to the creation of a rule. The fact that a treaty makes it a rule to use precaution does not alter the nature of precaution as a standard. The precautionary principle will therefore gain its legal value from being refined by negotiators and interpreted by adjudicators rather than being turned into a traditional rule.

Keywords: precautinary principle, best efforts, due diligence, international law, environmental law, WTO, ECJ, EU, ITLOS, GMO, fisheries, asbestos, beef hormones