диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 99

It also hasa legal side that has been taking a clear shape in recent decades.The example of potential practical application of the precautionary principlethat is the most evident and widely cited in English-language scholarly works isestablishing the legal standards for emissions and discharges. As we know, theyshould be set forth so as to ensure that no harm is inflicted on human health andthe environment (usually meaning no material or irreparable harm). However, inreality it is not always possible to predict the effect of emissions and discharges onthe environment precisely enough: the cumulative effect in the region is not always613Watson R., Moss R., Niederberger A.A. Providing advice to policymakers: international scientific and technicalassessment of global environmental issues and challenges for the scientific community. Oceanography.

1996. 9(2),P. 140–142. http://www.tos.org/oceanography/issues/isue_archive/issue_pdfs/9_2/9.2_watson_et_al.pdf437clear; long-term effects on the environment and human health are understudied,etc. Where only isolated scientific data are available to the effect that a specifictype of emission, even in a negligible amount, can be dangerous to human health,the activity causing such type of emissions should, based on the precautionaryprinciple, be prohibited in the region, or the technological process should bealtered. It is clear that applying the precautionary principle implies administrativedecisions as well as financial costs for the party engaged in the activity.614History is abundant with precedent for applying the precautionary approachin taking important administrative and legal decisions.

As a relatively recentfamous example that very clearly represents the essence of the precautionaryprinciple, foreign scholarly literature often cites the prevention of a cholerapandemic in London in 1854. From 31 August through 9 September 1854, 500lethal cases of cholera were registered in Central London. A London physician,John Snow, who was studying the spreading of cholera, noticed that the majorityof the dead had taken water from a well in Broad Street that was most popularamong the citizens; but there were no sick among those who used water from otherwells.

Snow addressed the city authorities advising them to close the Broad Streetwell, arguing that there was supposedly a connection between using contaminatedwater and the spiking sickness rate. The well was closed the next day, whichplayed a great role in preventing cholera from spreading in London. It is importantto note here that although Snow had, as early as 1849, in a work on the wayscholera spreads, already suggested that cholera and polluted water were connected,that remained a mere scientific hypothesis unsupported by official medicine: thepredominant view was that cholera spread by air (Snow’s suggestion wasconfirmed only thirty years later by Koh in Germany). Nevertheless, the Londonauthorities listened to the physician’s advice and took measures, and the pandemicwas prevented as a result. That case can be seen as a textbook example of theprecautionary principle: the authorities taking into account an expert’s opinion that614On the publications on the precautionary principle in English and Russian, see Vylegzhanina E.E.

Ot resheniyaproblem k ikh preduprezhdeniyu: tendentsii razvitiya evropeiskogo ekologicheskogo prava [From Solving Problemsto Preventing Them: Evolutionary Trends of European Environmental Law]. // International Law. 2004. No. 4.438existed only as a scientific hypothesis at the time; and taking appropriate measuresbased on the hypothesis to avoid graver consequences.615Unfortunately, one can draw a long list of examples when warnings and theconcerns of scientists on the consequences of some activity were disregarded, latercausing serious negative effects for human health and nature.

Thus, it is knownthat back in 1898, Lucy Deane, an English factory inspector, drew attention to theextremely unhealthy effect of white asbestos dust on human health. Only ahundred years after that, in 1998, the British Government banned the production ofwhite asbestos, and a year after that white asbestos was banned at EU level. Atpresent, around 3,000 people die annually from past exposure to asbestos. InWestern Europe, from 250,000 to 400,000 cancer cases are expected to occur dueto (past) asbestos exposure.616One can compile a long list of instances for the last hundred years, where arefusal of administrative bodies to take account of the warnings of specialists onthe effects of anthropogenic influence on nature had led to rather dismal results(this is true, in particular, for radiation, asbestos, lead, as well as the deformationor destruction of entire ecosystems, such as, for instance, the Great Lakes617 or theAral Sea). Some lessons, however, were learned.

In particular, the EuropeanEnvironmental Agency created in 1993 within the EU, is in charge, among otherthings, of providing to EU political bodies and member states objectiveinformation on the influence, including estimated, of economic activities on nature.As foreign legal scholars note, the crystallization of the legal content of theprecautionary principle in the context of ecological risks is rooted in the 1970s.This, in particular, is related to the fight of the German scientists along with somepoliticians against deforestation and its resulting consequences, including airpollution. The key idea of the precautionary principle they developed was this:615The Precautionary Principle in the 20th Century. Ed.

by P. Harremoes and others. London, 2002, P. 5.616Gee D. and Greenberg M. Asbestos: from ‘magic’ to malevolent mineral. / The Precautionary Principle in the20th Century. Ed. by P. Harremoes and others. London, 2002, P. 49–63.617Gilbertson M. Early warnings of chemical contamination of the Great Lakes.

/ The Precautionary Principle in the20th Century. Ed. by P. Harremoes and others. London, 2002, P. 138–147.439- a state’s interference is necessary where a potential serious and inevitablethreat exists to human health and the environment;- measures should be taken to mitigate that impending danger;- such measures should be adopted even before irrefutable proof of possibleharm is obtained;- here, consideration is given to the possible price and positive results ofsuch measures or refusal therefrom.Based on these ideas, a conclusion was made that there was more to the“precautionary approach” than defining the “threshold of proving” the existence ofdanger; although “minimum” demonstration was necessary to substantiatemeasures aimed at mitigating potential harm. This was done with reference to theprecautionary principle’s scope, as set forth in the German 1974 Clean Air Act,being defined as follows in 1985: - research and monitoring for the purposes ofearly detection of possible harm; - general reduction of pressure on theenvironment; - promotion of “clean products” and innovations; - the precautionaryprinciple, meaning that expenses for preventive measures should be proportionateto the expected benefits; - interaction between all interested parties to solvecommon problems by way of adopting integrated political measures.

Suchmeasures are to be aimed at improving the environment, competition, andincreasing the employment rate, as well as decreasing risks before the harmbecomes evident and the impact – serious and irreversible.618At present, the legal content of the precautionary principle is becomingricher. The process is accompanied by heated arguments among politicians, thebusiness community, scientists and other actors. This is natural, since takingaccount of scientific opinion, including hypotheses, to prevent harm to nature andman has serious political and economic effects.

Such disputes concern the contentof hormones in meat,619 genetically modified organisms and many other questions.618The Precautionary Principle in the 20th Century. Ed. by P. Harremoes and others. London, 2002, P. 4.619Bridges J.W. and Bridges O. Hormones as growth promoters; the precautionary principle or a political riskassessment. The Precautionary Principle in the 20th Century. Ed. by P. Harremoes and others. London, 2002, P.161–169.440And this is quite understandable, since commercial interests are directly connectedwith the legal scope and political use of the precautionary principle, which ideallyshould reflect a balance of interests: political, business, scientific and the public atlarge.As to national laws, one cannot fail to notice a great influence in theAmerican legal concept of precaution.

The English terms used (the term“precautionary prevention” is used in the US) and the meaning of the respectivelegal terms, however, are different both sides of the Atlantic. The US took the firststeps to stipulate the precautionary principle in legislation. Thus, as early as 1957,the Delaney Clause to the Food, Drugs, and Cosmetic Act was adopted, banninganimal carcinogen additives from products consumed by humans. In the early1970s, it was prohibited to use goat and sheep meat taken from infected animals infood,preventingmass“madcow”disease(transmissiblespongiformencephalopathy). In 1977, several years earlier than the Europeans, the Americansforbade using chlorine and fluorhydrocarbons in aerosols, and in 1972-1979,almost ten years before the Europeans did the same, they introduced a ban on usinggrowth-promoting agents in livestock breeding.

However, EU environmentalstandards later turned out to be more efficient.Internationally, the precautionary principle was first formulated by theOrganisation for Economic Cooperation and Development (OECD) in theDeclaration of the Third International Conference on the Protection of the NorthSea (London, 1990).

According to this document, the lack of precise scientificknowledge cannot serve as a ground to refuse to take measures to prevent materialor irreversible environmental harm. The participants of the Third Conference onthe North Sea declared the applicability of the precautionary principle. Moreprecisely, they announced their willingness to take measures to avoid thepotentially destructive effect on the marine environment of toxic substances evenwhere there is no scientific evidence to prove a causal link between toxicemissions and their effects. At present, the precautionary principle is widelyapplied in the context of protection of the marine environment from pollution,441climate change, dangerous wastes, etc., in particular, under the 1992 Conventionfor the Protection of the Marine Environment of the North-East Atlantic; the 1987Montreal Protocol on Substances that Deplete the Ozone Layer, etc. Thus, forinstance, the 1992 UN Framework Convention on Climate Change contains aprovision on the parties’ precautionary measures to foresee, prevent and reduce thecauses of climate change and mitigate their negative effects.The wording used in international legal acts differs, but is essentially closeto the wording of Principle 15 of the Rio Declaration.