The inclusion of the PP within numerous legislative frameworks, for example the North Sea Ministerial Declarations, the Rio Declaration of 1992, the 1996 Protocol to the London Convention and others, reflects the need for a mechanism to address the pervasiveness of uncertainty and indeterminacy coupled with the ongoing need to take decisions that facilitate preventive action. It has become a key axiom of international environmental protection initiatives, with a role for science defined explicitly. Science has a definite role to play, although it shall have to embrace other decision-making players such as the PP to make it a sensible, robust and tough tool as it searches for answers in this highly complex, uncertain and demanding world with its plethora of environmental problems facing mankind and the environment.
By apparently dispensing with the need to establish causality, the precautionary principle has been widely criticised as being unscientific, either in whole or in part. It has also been categorised as a wholly political philosophy, rather than a basis from which to consider scientific knowledge and uncertainty as part of the overall regulatory process (Gray, 1990). Just like science, the PP also is not infallible; however, it can be used to make science more scientific by searching for the ‘right’ truth that cannot be manipulated to appease particular players, who may have financial interests in a particular project (such as mining) that may imperil the environment and the health of a country’s citizens. Since the PP allows all role players, irrespective of their scientific prowess, to participate in environmental decision- making, it is well positioned to sound an alarm when scientific process in decision-making becomes derailed. However, what has heightened the controversy is the role and encouragement of political leaders, whose initial burst of concern for the environment has dwindled under the pressure of commercial interests, and with the courts also taking up a greater role of supporting politicians and industry. Concerns have been raised in some quarters pertaining to the role of courts in environment decision-making with some claiming that, courts are now behaving like an opposition party and are not as impartial as they should be (Wiist, 2011). Furthermore, environmental laws have been under attack since the 1980s, particularly in the USA (Mayers, 2004), where many have been modified or scrapped, and all are enforced by regulators who have been chastened by increasing challenges to their authority from industry and the courts.
The courts, and now increasingly international trade organisations and agreements like the World Trade Organization (WTO), have institutionalised an anti-precautionary principle to environmental controls (Wolfenbarger & Pfiher, 2000). They have demanded the kinds of proof and certainty of harm and efficacy of regulation that science often cannot provide (Gray & Brewers, 1996). In opposition to this approach to control exposure, arguments are advanced that decisions need to be made through community-based needs assessments and the assessment of alternatives, so that the affected populations can take part in a democratic decision-making process about whether proposed sources of pollution are necessary, and whether there are safer alternatives that can be employed (Sandin, 1999). In South Africa the question, rightly put, is whether mining activities should be permitted to continue while Rome is burning? (Le Maitrea et al., 2001). In South Africa, The Environmental Management Act, 107 of 1998 allows for pollution to happen and the polluter is then expected to pay the abatement fee. Despite the criticisms levelled against the PP, proponents of this approach believe that the core of the PP entails anticipatory action, with the onus of proof shifting to those proposing projects entailing ecologically hazardous activities, and science being extended to include broader civic participation (O’Riordan & Cameron, 1994: 14-16). In a nutshell, the PP challenges the established science-based regulatory system, and tests the application of cost-benefit analysis in those areas where it is undoubtedly weakest (i.e. situations where environmental damage may be irreversible or potentially catastrophic); it calls for changes to established legal principles and practices, such as liability, compensation and burden of proof; and it challenges politicians to begin thinking in longer times frames than the next election or the immediate economic recession. Lastly, the PP challenges the existing organisation of academic research because it cuts across disciplinary boundaries and raises issues about the quality of life for future generations. It is profoundly radical and potentially unpopular. The fact that so-called First World countries are apparently obsessed with the PP means that developing nations need not follow the ‘slippery slope’ argument.6 One size does not fit all.
1.6 Social and political grounds to adopt the PP
Although the PP is increasingly subjected to academic scrutiny and remains a matter of intense debate, its ideological and ethical underpinnings – as well as the interrelations between precaution, public management, and basic concepts in moral philosophy – have received surprisingly exiguous attention. This begs the question: why ignore the PP in the midst of so much environmental devastation and scientific uncertainty? Is there a sinister motive? In general, the ethical and philosophical aspects of
6 The slippery slope argument in this context refers to intervention wherein the European community expects developing nations to embrace the precautionary principle if they want to conduct business transactions with them. Kontoleon et al., 2002.
the PP have not been studied much. The PP as an ethical tool, however, seems to have the capacity to protect potential victims of exposure to hazards and, ipso facto, it has the potential to give effect to the principle of doing no harm. Whereas international trends show that many developed countries are adopting policies that promote pesticide reduction, for instance, the use of pesticides in South Africa alarmingly continues to expand exponentially. In particular, macroeconomic policies encourage pesticide use among emergent small-scale black farmers, while the potential exposure of workers on commercial farms remains high (Lukey, 2008).
Despite the country having legal controls that seem to conform to international standards, the present health and environmental impacts of pesticide use in South Africa are substantial and generally underestimated. The reasons lie in the fragmentation of regulatory mechanisms, as well as in the absence of public awareness and participation in policy making related to pesticides and other chemical pollutants emanating from industries. Failure to enforce the existing legislation, an ambivalent relationship between government and industry, and the existence of a “pesticide culture” will continue to prevent the implementation of meaningful control measures. As a result, it is marginalised groups, such as small-scale farmers and farm workers, who bear the brunt of policies that have not kept pace with growing international awareness of the hazard that widespread pesticide use and other pollutants pose to human health and the environment (London & Rother, 2000). These environmental challenges are also transparent in the mining sector, where the quality of air and water has been compromised by the elite mine owners. In view of these challenges, it seems likely that the PP can offer an opportunity to transform “business as usual” to democratic decision-making processes by fostering, among others, the right-to-know principle, and supporting the claims that this right should be treated as obligatory and universal.