In short, the “precautionary principle” is a notion which supports taking protective action before there is complete scientific proof of a risk; that is, action should not be delayed simply because full scientific information is lacking. The “precautionary principle” or precautionary approach has been incorporated into several international environmental agreements, and some claim that it is now recognized as a general principle of international environmental law.
In the fields of food safety, plant and animal health protection, the need for taking precautionary actions in the face of scientific uncertainty has long been widely accepted. There may be instances when a sudden outbreak of an animal disease, for example, is suspected of being linked to imports, and trade restrictions must be immediately imposed while further information about the source of the outbreak and its extent are gathered. The discipline of risk assessment, one of the basic obligations of the SPS Agreement, was developed to guide action in the face of incomplete knowledge about risks to health. It focuses on probabilities of hazards occurring, and the probable consequences, because complete knowledge is very rare. Furthermore, it is virtually impossible to scientifically prove the “safety” of a food or product, rather scientists seek evidence of any harm.
With respect to food safety, the Codex Committee on General Principles is developing general principles for risk analysis, and in this context discussing under what conditions precautionary actions may be warranted, and what criteria should be respected in taking such actions.
In the beef hormones dispute, the Panel and Appellate Body noted that the “precautionary principle” was reflected in the SPS Agreement, but that it did not override the specific obligations in the Agreement. The Appellate Body considered that the notion of precaution was, in particular, incorporated in paragraph 6 of the Preamble, Article 3.3, and Article 5.7 of the SPS Agreement.
Paragraph 6 of the Preamble embraces precaution by encouraging harmonization of national SPS measures with international standards without requiring Members to change their sovereignly-determined appropriate levels of health protection. Article 3.3 of the SPS Agreement entails a precautionary approach because it explicitly permits Members to adopt SPS measures which are more stringent than measures based on the relevant international standards.
Article 5.7 allows Members to take provisional measures when sufficient scientific evidence does not exist to permit a final decision on the safety of a product or process. The provisional measure must take into consideration available pertinent information. The Member adopting the measure must seek to obtain the additional information necessary for a more objective assessment of risk, and must review the SPS measure within a reasonable period of time.
The European Union did not invoke Article 5.7 in the beef hormones dispute, stressing that its import ban was not a provisional measure. However, in the variety testing dispute, Japan did claim that its measure was a provisional measure, in accordance with Article 5.7. The panel found no evidence that Japan had actively sought to obtain additional information in order to review its measure within a reasonable period of time. The Appellate Body noted that the “reasonable period of time” had to be established on a case-by-case basis, and that in this case, although Japan’s measure had been in place for over twenty years, the obligation to review the measure came into existence only with the entry into force of the SPS Agreement in 1995. The Appellate Body agreed with the panel finding that Japan’s measure was in violation of Article 5.7.