Limiting the Precautionary Principle: Weapons Regulation in the Face of Scientific Uncertainty

Abstract

Conventional wisdom suggests that the precautionary principle, which places the burden for proving a product's safety on the manufacturer, best protects the environment and the public's health in cases of scientific uncertainty. Using insights from behavioral law and economics, this Article contends that the precautionary principle may lead to perverse environmental prioritization in the military context. It uses depleted uranium weapons as a case study to demonstrate the military precautionary principle's insufficient attention to risk-risk trade-offs and its systemic susceptibility to cognitive biases such as the availability heuristic, blame attribution errors, and myopia to older risks. The Article instead proposes an amendment to existing international law to create an ongoing duty for states to evaluate the unintended environmental and health threats of weapons. Such an amendment to Article 36 of Protocol I to the Geneva Convention could help provide the information needed for a global weapons toxics registry and foster the deployment of cleaner weaponry.

Keywords: precautionary principle, behavioral law and economics

JEL Classification: K3