4. SABERES DE MUJERES
4.2. Mujeres empoderadas
No understanding of the precautionary principle would be complete without an examination of the burden of proof that attaches to the principle. In the context of the precautionary principle, the burden of proof is often described as a ‘reverse onus’ or a ‘shifting burden of proof’.514 Traditionally, the burden of proof lies with the opponent of the proposed activity, who must provide sufficient evidence of guilt or harm or risk of harm, depending on the context and standard of proof in question.515 In criminal justice, the accused is innocent until proven guilty and has no obligation to provide evidence
511 Wiener, supra note 432 at 608. 512 Wiener, ibid at 609.
513
Joel Tickner and David Kriebel, “The role of science and precaution in environmental and public health policy” in Elizabeth Fisher, Judith Jones and René von Schomberg, eds, Implementing the Precautionary Principle: Perspectives and Prospects (Cheltenham, UK: Edward Elgar Publishing, 2006) 42 at 53. [hereinafter Tickner & Kriebel]
514
Sands et al., supra note 11 at 222; De Sadeleer (2002), supra note 460 at 203; Balint et al., supra note 462 at 66; Quijano, supra note 468 at 23; Cameron(1999), supra note 9 at 46-47; Pyhälä et al., supra note 484 at 213; O’Riordan & Cameron, ‘History’, supra note 465 at 16; Trouwborst, supra note 319 at 193; Stephen Dovers, “Precautionary policy assessment for sustainability’ in Elizabeth Fisher, Judith Jones and René von Schomberg, eds, Implementing the Precautionary Principle: Perspectives and Prospects
(Cheltenham, UK: Edward Elgar Publishing, 2006) 88 at 92. [hereinafter Dovers]
against him/herself.516 Even in the environmental context, “[t]raditional legal standards […] have tended to privilege parties accused of degrading the environment; until ‘proven wrong’ such parties can continue the activity in question.”517
In contrast, under the precautionary principle, the burden is shifted to the proponent of action, thereby “placing the burdens and responsibilities for safety and understanding on producers and not putting the burden of proof of harm on the potential victims.”518 In doing so, the burden shifts to “the party or entity that will benefit from the activity” and, even more importantly, “on the party best able to generate the information needed to make the decision.”519 The burden lies with the entity looking to change the status quo, wherein the status quo is the current less polluted world prior to the
introduction of the newly proposed risks.520
Such a shift in the burden of proof would seem very appropriate, perhaps even a matter of common sense, in situations where the precautionary principle is in operation. First, the environment and individuals likely to be the victims should the potential harms be realized are rarely in the position to mount an objection prior to the risky activities having taken place. They may lack knowledge about the existence of the proposed activity, or, if known, they may lack access to information necessary to mount an opposition, and quite often they will lack the resources to challenge the actions in court prior to the harms having occurred. As such, the precautionary principle “calls for assigning appropriate burdens” which demands a shift since the “aim is fairness and accountability” for all parties involved.521
Furthermore, the shifting burden is arguably necessary to align with the objectives and intentions of the precautionary principle which
516 For example, see section 6 of the Canadian Criminal Code, RSC 1985, c C-46. 517 Cameron (1999), supra note 9 at 46.
518
Quijano, supra note 468 at 23.
519 Wiener, supra note 432 at 606. 520 Cameron (1999), supra note 9 at 47. 521 Myers, supra note 496 at 48.
“posits a presumption in favour of protection of the environment and public health.”522 Trouwborst equates the presumption of innocence in criminal law with a presumption of harmfulness under the precautionary principle.523 Therefore, where threat of harm and scientific uncertainty have triggered the precautionary principle, the maxim should be ‘harmful until proven harmless’.524
This shifting burden is not only the product of academic discourse, but appears in numerous international instruments which include the precautionary principle. The 1998 Wingspread Statement, produced by academics at the Wingspread Conference on the Precautionary Principle, stated that, under the precautionary principle, “the proponent of an activity, rather than the public, should bear the burden of proof.”525 Other
international instruments that have included a precautionary burden of proof include the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities,526 the 1991 Antarctic Protocol,527 the 2002 Guiding Principles on Invasive Alien Species,528 and the 1992 Convention for the Protection of the Marine Environment of the North-East
Atlantic.529 Evidence suggest that, in practice, states often apply this shifted burden, but
522 De Sadeleer (2010), supra note 319 at 203. 523
Trouwborst, supra note 319 at 200.
524 Trouwborst, ibid.
525 Science and Environmental Health Network, The Wingspread Consensus Statement on the
Precautionary Principle, (1998) available at: http://www.sehn.org/state.html. [hereinafter Wingspread Statement]
526 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), 6 February
1988, 27 ILM 868 at Article 4(1)-(4).
527Protocol on Environmental Protection to the Antarctic Treaty, 10 April 1991, 30 ILM 1455 (1991) at
Articles 3, 7, and 8: a moratorium on mineral resource activities is created and a requirement that scientific related research must complete environmental impact assessment before any scientific research may be carried out.
528 Guiding Principles for the prevention, introduction and mitigation of impacts of alien species that
threaten ecosystems, habitats or species (annexed to Decision VI/23 adopted by the Conference of the Parties to the CBD, The Hague, April 2002) at Article 10(1) and (2): create a prohibition on the introduction of alien species without prior authorization under an assessment of risks and in accordance with the precautionary principle.
529
OSPAR Convention, supra note 443 at Annex II, Article 3(3)(c) which requires parties wishing to dump certain wastes at sea to provide scientific evidence demonstrating these products would not cause hazards to environment or health.
even more frequently states have used and created definitions of the precautionary principle which are silent with regard to the burden of proof to be applied.530 In such cases, it is unclear whether the traditional burden of proof is automatic and assumed. A strong argument for the precautionary style burden’s logic and trueness to the objectives and aims of the principle itself can be made to suggest it is inherent in the invocation of the principle even where it is not explicitly stated.531