The Precautionary Principle and a Fair Allocation of the Burden of Proof in International Environmental Law

2012 ◽  
Vol 21 (3) ◽  
pp. 259-270 ◽  
Author(s):  
Monika Ambrus
Keyword(s):  
Precautionary Principle ◽  
Environmental Law ◽  
Burden Of Proof ◽  
Fair Allocation ◽  
International Environmental Law ◽  
The Precautionary Principle

The precautionary principle and the burden and standard of proof in European and Dutch environmental law

2020 ◽  
Vol 13 (2) ◽  
pp. 113-131
Author(s):  
Rogier Kegge
Keyword(s):  
Precautionary Principle ◽  
Environmental Law ◽  
Burden Of Proof ◽  
Case Law ◽  
Fair Allocation ◽  
Protective Measures ◽  
Standard Of Proof ◽  
The Precautionary Principle ◽  
Administrative Courts

This article offers an analysis of the application of the precautionary principle by European courts and the highest Dutch administrative courts in environmental cases. The precautionary principle is one of the leading principles in EU environmental law, but it has no unequivocal meaning. This makes the principle difficult to apply and the allocation of the burden of proof and the level of standard of proof complex matters. In the context of the allocation of the burden of proof, it is essential to make the distinction between the precautionary principle invoked as an obligation or a justification for protective measures. A realistic level of standard of proof is also essential. Without a fair allocation of the burden of proof and a realistic level of standard of proof, either the authorities or the appellants may be exposed to unequal procedural positions and unsolvable evidentiary problems. Analysis of the case law leads to the conclusion that the principle sometimes is misapplied by the Dutch administrative courts.

scholarly journals Applying the Precautionary Principle to Private Persons : Should it Affect Civil and Criminal Liability?

2005 ◽  
Vol 43 (1) ◽  
pp. 63-78 ◽  
Author(s):  
Bruce Pardy
Keyword(s):  
Precautionary Principle ◽  
Environmental Law ◽  
Criminal Liability ◽  
Strict Liability ◽  
Criminal Punishment ◽  
International Environmental Law ◽  
The Precautionary Principle ◽  
The Past ◽  
Precautionary Action ◽  
Domestic Law

The precautionary principle, developed in international environmental law, is a prospective concept. It can be used to decide what should be allowed to occur in the future. The question addressed in this article is whether, in domestic law, the precautionary principle should be applied retrospectively. Should precautionary behaviour be used as a standard to apply to the past actions of private persons, so as to judge whether those persons have acted legally ? In the civil realm, the answer is « yes ». Applying the precautionary principle in civil cases removes foreseeability requirements, and transforms liability based on fault into strict liability. In the criminal sphere, retrospective application of the precautionary principle is not appropriate. To require precautionary action on the part of an accused in an environmental prosecution transforms strict liability into absolute liability, and creates the potential for criminal punishment in the absence of culpability.

The Precautionary Principle in the Twenty-First Century: A Case Study of Noise Pollution in the Ocean

2007 ◽  
Vol 22 (1) ◽  
pp. 61-87 ◽  
Author(s):  
Alexander Gillespie
Keyword(s):  
Precautionary Principle ◽  
Contemporary Problem ◽  
Environmental Law ◽  
Noise Pollution ◽  
First Century ◽  
International Environmental Law ◽  
The Precautionary Principle ◽  
Current State ◽  
Twenty First Century

AbstractThe precautionary principle is one of the most discussed ideas in international environmental law. However, despite over 20 years of dialogue, both its status and its aplication remains uncertain. This article attempts to rectify part of this difficulty by displaying the current state of play on the principle, and how it may be applied to a specific contemporary problem. The selected problem is noise pollution

scholarly journals APPLYING PRECAUTIONARY PRINCIPLE IN FISHERIES MANAGEMENT

2018 ◽  
Vol 1 (1) ◽  
pp. 13-34
Author(s):  
Emmy Latifah ◽  
Moch Najib Imanullah
Keyword(s):  
Fisheries Management ◽  
Precautionary Principle ◽  
Environmental Law ◽  
Decision Makers ◽  
Sustainable Fisheries ◽  
International Environmental Law ◽  
The Precautionary Principle ◽  
Scientific Certainty

The aim of this paper is to examine an applying the precautionary principle in fisheries management. Precautionary principle is a principle where the possibility exist of serious or irreversible harm, lack of scientific certainty should not preclude cautions action by decision-makers to prevent or mitigate such harm. This principle has been accepting in widely international environmental law so that with applying this principle in fisheries management, it could be expected to provide an opportunity to progress towards sustainable fisheries development.

Precaution

2008 ◽  
Author(s):  
Jonathan B. Wiener
Keyword(s):  
Precautionary Principle ◽  
Environmental Law ◽  
Burden Of Proof ◽  
Careful Consideration ◽  
International Environmental Law ◽  
Health Safety ◽  
Trade Offs ◽  
Future Harm ◽  
Uncertain Future ◽  
Anticipatory Action

Precaution is a strategy for addressing risk. Risk of future harm is always uncertain. At its essence, precaution entails thinking ahead and taking anticipatory action to avoid uncertain future risks. The astute exercise of precaution requires far more than an earnest commitment to protecting health, safety, and the environment. Intelligent precaution requires careful consideration of facts, values, consequences, and trade offs. The precautionary principle (PP) is an attempt to codify the concept of precaution in law. It is the most prominent – and perhaps the most controversial – development in international environmental law in the last two decades. This article examines PP and its three versions: uncertainty does not justify inaction, uncertainty justifies action, and hifting the burden of proof. It also presents a normative analysis of PP and considers its future.

scholarly journals APPLYING PRECAUTIONARY PRINCIPLE IN FISHERIES MANAGEMENT

2018 ◽  
Vol 1 (1) ◽  
pp. 13-34
Author(s):  
Emmy Latifah ◽  
Moch Najib Imanullah
Keyword(s):  
Fisheries Management ◽  
Precautionary Principle ◽  
Environmental Law ◽  
Decision Makers ◽  
Sustainable Fisheries ◽  
International Environmental Law ◽  
The Precautionary Principle ◽  
Scientific Certainty

The aim of this paper is to examine an applying the precautionary principle in fisheries management. Precautionary principle is a principle where the possibility exist of serious or irreversible harm, lack of scientific certainty should not preclude cautions action by decision-makers to prevent or mitigate such harm. This principle has been accepting in widely international environmental law so that with applying this principle in fisheries management, it could be expected to provide an opportunity to progress towards sustainable fisheries development.

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