Explainer Series: Principle of Preventive Action

Introduction

What do we do upon noticing the sky becoming all caliginous and cloudy? Or on hearing the pitter-patter of tiny droplets on our windows? Of course, we rush out to our balconies in a bid to retrieve the clothes we had put out to dry before they get wet. But why?

We do so precisely to avoid going through the tedious process of having to re-invest our precious time and resources into washing and drying the clothes all over again.

The rationale behind our action is very logical and simple— it is far easier to limit the scope of damage (like picking clothes beforehand to avoid them getting wet) than having to mend those damages after their occurrence. The Principle of Preventive Action works in a similar manner. Simply put, ‘it is better to prevent than to repair’, or as the common adage goes- ‘prevention is better than cure’.

Historical Background of Preventive Action

The approach of Preventive Action can be traced back to the London Convention, named ‘Convention relative to the Preservation of Fauna and Flora in their Natural State’, of the year 1933. This multilateral treaty was signed by 11 countries, including the United Kingdom, Belgium, South Africa, Italy and India, among others. The basic aim of the treaty was to preserve the natural fauna and flora from exploitation and extinction across various parts of the world, particularly Africa. This was to be achieved through the establishment of National Parks and Natural Reserves, and by regulating hunting practices and collection of species for commercial purposes. All these activities point toward a Preventive Approach as flora and fauna protection is beginning early and is aimed to mitigate future concerns of extinction and irreversible damage.

Preventive Action with respect to Conventions

The Principle of Prevention laid the foundation for the “Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal” (1989) which aimed at minimizing the production of hazardous waste and preventing its unlawful disposal. Therefore, discharge of toxic substances into the environment needs to be reduced to an environmentally sound level, to prevent serious or irreversible damage to the ecosystem. The Convention suggests that action should be taken at an early stage before any actual harm has ensued rather than waiting to restore the damaged resources. This principle plays an important role in “laws regarding generation, transportation, treatment, storage, and disposal of hazardous waste and laws regulating the use of pesticides.” Additionally, the concept of Transboundary Effects was also introduced to the Principle of Prevention via the Basel Convention; this concept states that ‘a state may be under the obligation to prevent damage within its own jurisdiction’.

Preventive Action also features directly and indirectly in Principles 6, 7 & 18 of The Stockholm Declaration on Environment (1972). Principle 6 and 7 talk about ‘Pollution Control’ and ‘Prevention of Pollution of Seas’ respectively. Principle 6 suggests indiscriminate dumping of toxins, heat, and other harmful substances in large quantities should be halted, and both Citizens and States expected to contribute. Principle 7 says all possible and necessary steps must be taken to reduce sea pollution by substances which pose harm to human as well as marine life and damage or interfere with legitimate usage of the sea. Principle 18 talks about ‘Use of Science and Technology’. This Principle states that Science and Technology should be applied to the field of environment conservation as well and be used to identify and control various environmental risks. It should also aid in finding viable solutions for the environmental issues.

Preventive Action in the world at large

There are two important treaties which build upon the concept of Transboundary effect- The Convention on the Transboundary Effects of Industrial Accidents [TIAC (1992)] and The Convention on the Protection and Use of Transboundary Watercourses and International Lakes [TWC (1992)]. The former aims “to enhanceindividual and collective national responsibility and capacity in the prevention and control of industrial accidents and their transboundary effect to protect human and environmental life.” The latter aims “to strengthen national and international actions aimed at the protection and ecologically sound management of transboundary waters.” Under TIAC there exists an obligation to prevent any kind of transboundary pollution between states and under TWC states are required to take proper course of action to prevent, control and reduce any transboundary pollution. Further, under international law, there exists an obligation to notify other states in case of an accident without delay. Similarly, in TWC its paramount for states sharing a transboundary river to inform each other in case of any transboundary impact which requires efficient public administration. Additionally, each state is required to have in place Emergency Plans and Procedures to respond to such industrial accidents almost immediately in order to mitigate any harmful effects of the Transboundary spread. Lastly, with respect to the question of Liability and State Power, there exists a civil liability on the polluter state for payment of compensation to the affected states in most treaties. However, it is extremely rare for such protocols to be penned and more so to ever see them coming to force. This is majorly because states do not wish to agree to a measure by which they would have to shell out millions for compensation to the affected country. So, while there does exist a Liability Protocol in TIAC, it is not enforceable like most International Law treaties. Hence, realistically speaking, states do not possess much power to demand liability and compensation from other states in case of transboundary accidents. So, disputes between states must be settled “using peaceful means of negotiations, mediation, conciliation, arbitration or judicial settlement.” If this is not done within 6 months, an impartial fact finding commission is formed which will “adopt its report using a majority vote and shall submit that report to the states in dispute thus putting forth its findings and recommendations, which the parties to the dispute shall consider in good faith.” This is the most power a state possesses in such cases.

Preventive Action in India

An excellent example of the Transboundary Effect in the Indian context would be the case of Ajeet Mehta v State of Rajasthan. Here, the defendant, who lived in a residential part of Rajasthan, was involved in the provender business and had been responsible for creating pollution from the transportation and stoking of his fodder. A petition was filed against the defendant on the grounds that the inhalation of dry and burnt fodder particles was a hazard to the health of the residents living in the surrounding area. The City Magistrate acknowledged the same and ordered the defendant to stop stoking fodder and the business to be shut down. Then, the defendant’s filed a revision petition before the Sessions Court and the Additional Sessions Judge reversed the order thus ruling in favour of the Defendants. Thereafter another revision petition has been filed by the wife of the complainant and the current judgement (in the High Court of Rajasthan) also ruled against the defendant. Hence, the State of Rajasthan upheld the principle of the State being under an obligation to prevent damage within its jurisdiction.

Preventive Action & Precautionary Principle

One may ask how is the Principle of Preventive Action different from the Precautionary Principle. The two go hand in hand with one another but they are not the same. The basic differing criterion is the concept of ‘uncertainty’. If the environmental effects of a certain activity are known, the measures taken in response to it are termed as preventative in nature. However, if the effects of the activity are uncertain, the measures may be labelled as precautionary. Essentially, the Preventive Action principle requires proven facts and is intended to prevent risks of an activity whose cause-effect relation has already been established whereas Precautionary Action means acting on issues as soon as the alarm bells sound. So, Precautionary Action is used when there is a suspected risk associated with an activity but the risk cannot be explained clearly yet. Furthermore, it is important to note that as society advances and as research develops, the uncertainty factor slowly vanishes. Thus, the measures taken automatically move from precautionary to preventive in nature. However, in spite of the differences mentioned, essentially, both the principles aim at adequately safeguarding the environment.

Conclusion

In closing, I would like to quote the band- Foals, “Everything not saved, will be lost!”. We are at a crucial stage where we should try salvaging all that we can and prevent causing further damage to the environment. This endeavour of ours could be aided by applying the Principle of Prevention to mitigate the known threats and simultaneously using the Precautionary Principle to battle uncertain threats that the future may hold. It is imperative to implement the same sense of urgency and energy that we employ while rushing out to pick up our laundry before it rains into playing our part in preserving the environment and preventing complete annihilation of our planet Earth. Each of us can contribute to the cause in our own small way, be it as simple as walking or cycling for a couple of days in a week, reusing single sided paper, composting kitchen waste, etc. All of these reduce our carbon footprint and these little individual steps will eventually help form one huge, beneficial stride for mankind. As we’ve all already witnessed during the pandemic, nature is self-sufficient and has existed long before us, rather it is us humans who are indeed dependent on it. Thus, it is only right, that we should play our part in preserving Mother Earth as well, which has also been exemplified by Principle 1 of Stockholm Declaration on Environment(1972), which states “Man bears a solemn responsibility to protect and improve the environment for present and future generations”. The possibilities to do so are endless, and together we can live in sync with the environment, unlocking our full potential, blossoming like Sunflowers.

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