Part I Introduction

Part I aims to clarify when and how the polluter-pays, preventive, and precautionary principles co-exist: complementing, enriching, and in some cases contradicting each other. It stresses that these principles could be best described using three distinct models representing three paradigms of regulation: a curative model, a preventive model, and an anticipatory model. A curative model of nature characterized the early stages of environment policy and shaped the polluter-pays principle. This model was practicable only if accompanied by a preventive policy intended to limit environmental damage. The emergence of increasingly unpredictable risks is at present causing the authorities to base their policy on a third, anticipatory model that gave rise to the precautionary principle. The three principles examined in the first part of this book correspond to the three models described in this introduction.

Environmental Directing Principles versus Free Trade

This chapter focuses on the conflict between the precautionary principle and free trade within the World Trade Organization (WTO). It explains that the said conflict illustrates the role that environmental principles can play in modifying a debate with major legal as well as societal implications. It stresses the odd twists and tangled hierarchies characteristic of post-modern law which may be encountered in disputes involving trade and the environment.

The Legal Status of the Directing Principles of Environmental Law: From Political Slogans to Normative Principles

This chapter explains that the fact that these directing principles are set out in texts of varying status does not deprive them of normative effect. On the other hand, by being recognized in provisions with normative effect, the polluter-pays, prevention, and precautionary principles have specific normative effect rather than being mere regulatory ideals. This chapter clarifies the fact that the legal status of the directing principles is quite unusual and typifies post-modern law in that they are akin to norms whose content is somewhat vague and that they therefore lend themselves to a wide range of applications.

The Principle of Prevention

This chapter begins by explaining that the preventive principle is complementary to the polluter-pays principle by requiring the adoption of measures intended to prevent damage from arising. It then briefly reviews the evolution of the prevention principle in international law, EU law, and several national legal systems. Having determined the scope of the preventive principle in relation to other principles of environmental law (no harm principle, precautionary), the chapter systematizes its various facets (environmental standards, best available technologies, etc.). It goes on to consider the role of proportionality in determining the degree of prevention sought. It examines the sometimes ambivalent nature of the instruments typical of the preventive principle, using several case studies.

Part I Conclusions

The conclusion highlights that the polluter-pays, preventive, and precautionary principles must be considered in terms of interaction rather than opposition, particularly since they are operationally interdependent. Indeed, the precautionary principle calls for the presence of prevention, which in turn implies support for the polluter-pays principle. A preventive policy that would no longer be financed by the polluter-pays principle would be destined to fail. In addition, the conclusions of Part I highlight that the polluter-pays, preventative, and precautionary principles are well represented in positive law; they are helping to shape new legal instruments and adapt mechanisms, not necessarily specific to environmental law, intended to achieve protective ends.

Part II Conclusions

Part II of this book has shown how the environmental principles, Janus-like, present a double face: on one hand they recall the rationality inherent in modernity (function of coherence, codification) while on the other hand they are strongly shot through with post-modern characteristics (stimulation of public policy, weighing of interests). Against this background, the conclusions of Part II of this work strongly defend the argument that the advent of post-modernity has not done away with all forms of rationality. The conclusions demonstrate that the principles of environmental law can contribute to a revival of rationality.

General Introduction

First, this introduction sets out the main objective of this book, which is to determine the status and evaluate the contribution made by the three foremost environmental principles—polluter-pays, prevention, and precaution—to the construction of environmental law at the international, EU, and national levels. Second, it highlights that the concept of risk has become the activating concept of modern environmental law. Most of the environmental risks produced by industrial society have been the subject of preventive regulatory measures. This introduction explains that a new generation of risks has emerged due to the general inability of scientists to make reliable predictions about hazards due to uncertainties or insufficient knowledge and, on the other hand, by the impossibility of assessing the character of damage that might occur. It focuses on the possibility that law-makers may choose more open concepts, particularly those principles for which no fixed definition can be found.

Final Conclusions

This chapter concludes by presenting a number of arguments that support tilting the balance in favour of environmental concerns. It explains that the directing principles have a common denominator which is the battle against environmental risks. It stresses that these principles could be best described using three distinct models representing three paradigms of protection: a curative model, a preventive model, and an anticipatory model. The fact that directing principles represent the interface between modern and post-modern law is clarified. The chapter argues that while concentric circles are taking shape around environmental interests, each of those interests still provides evidence of a certain fragility. They must, however, be strengthened for the environmental directing principles to succeed and come to maturity.

Part II Introduction

The introduction of Part II of this book highlights that the polluter-pays, preventive, and precautionary principles described in Part I mark an epistemological shift between modern law, which rests on the fixed standards of traditional legal rule-making, and post-modern law, which emphasizes the pragmatic, gradual, unstable, and reversible nature of rules. Chapter 4 describes the paradigm shift from modern to post-modern law. Chapter 5 considers the various functions that the polluter-pays, preventive and precautionary principles may fulfil within a post-modern legal prospect, seeking to strike a balance among multiple and conflicting interests. Chapter 6 explains that the varying status of these principles does not deprive them of normative effect. Chapter 7 focuses on the conflict between environmental principles and free trade within the World Trade Organization (WTO). This four-stage approach enables us to demonstrate how the polluter-pays, preventive, and precautionary principles shape an ideal of rationality in a chaotic legal universe.

The Evolving Function of Environmental Directing Principles in the Transition from Modern to Post-Modern Law

This chapter considers the various functions that polluter-pays, preventive, and precautionary principles may fulfil within a post-modern legal prospect, seeking to balance multiple and conflicting interests. It clarifies that recourse to directing principles such as the polluter-pays, preventive, and precautionary principles described in Part I is often disparaged despite their usefulness, on the grounds that they are not sufficiently definite to ensure legal certainty. The chapter explains that these principles are generally described as having no perspective effect—until one fine day a court makes use of them, to the great surprise of the legislator. Thus, these principles may serve to conceal a return to judicial activism.