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18 Rev. Eur. Comp. & Int'l Envtl. L. 1 (2009)

handle is hein.journals/reel18 and id is 1 raw text is: RECIEL 18 (1) 2009. ISSN 0962 8797 Editorial Among the principles of environmental law, the pre- cautionary principle arguably has the potential to be the most important and far-reaching in effect. In terms of acting as a mechanism for integrating environmental considerations in policy and decision making, this potential, if the concept is applied in a mandatory fashion, is unparalleled. It is not a radical principle. In fact, as Australian Judge Paul Stein has stated, it is common sense. When making a decision, one should thoroughly consider its impacts and not take actions that might have significant adverse effects. It is therefore not surprising that the concept has been with us in one form or another for a long time. In fact, if viewed as making decisions based on the idea that it is 'better to be safe than sorry', then it has arguably been applied since time immemorial. In the 1960s and 1970s, this common-sense principle became ingrained in German law and policy and then expanded internationally. Today, over 60 international agreements refer to the principle. But how far has the precautionary principle really come? For over a decade some authors have argued that it has crystallized as a principle of customary international law; yet it is rare to find a court that has applied it in a mandatory fashion. And those that do apply it often have not done so consistently. This issue of RECIEL explores the development of the precautionary principle and how it is applied today in various situations and jurisdictions. The articles look at its application by European Community and Australian courts, its links to the ecosystem approach, its application in the context of energy and climate change law, its use in the realm of international trade law, and its application in the context of the regulation of hazardous substances. The issue commences with an analysis of the situation in the European Community, with Nicholas de Sadeleer examining the application of the precautionary principle in the EC Courts. Noting that the precautionary principle is not defined in the EC Treaty, de Sadeleer analyses how European courts have functioned in determining the status as well as the scope of the principle and he maps out how the principle can be invoked in different judiciary procedures. Jacqueline Peel then analyses how Australian courts have interpreted and applied the principle. Noting the wide range of areas in which the principle has been applied in that country, she argues that judicial con- sideration of the principle in Australia has the potential to form a body of common law with national and inter- national application'. To maker her point, she illustrates several general lessons that her country's experience offers for interpretation of the principle in other jurisdictions. Arie Trouwborst compares the application of the precautionary principle to the application of the ecosystem approach in international law. Underlining that both the precautionary principle and the eco- system approach are often utilized in similar contexts, Trouwborst analyses the differences, similarities and relationship between these two concepts. He examines their purpose, core elements and status under inter- national law, the role of scientific information in their application and the management actions associated with their implementation. Rosemary Lyster and Eric Coonan examine in their article the manner in which the precautionary principle has been applied in the context of Australian energy and climate change law. They review the extent to which the principle is a relevant consideration for development consent authorities determining appli- cations for energy generation facilities and find that there is 'no certainty that the precautionary principle will be applied consistently' by the courts to determine legal responsibilities of decision makers in this area. Caroline Foster examines how the precautionary principle has been applied to issues arising from the application of the World Trade Organization's (WTO) Agreement on Sanitary and Phytosanitary Measures. Noting that the WTO Appellate Body has found the principle to be relevant in the interpretation of the Agreement, she argues that this is helpful in dealing with new and emerging issues, such as the question of when a risk assessment relied upon by a WTO member becomes outdated by virtue of subsequent scientific developments. In her article, Dayna Nadine Scott analyses the way in which the principle has been applied in Canada in relation to the application of that country's Chemicals Management Plan. Focusing on the plan's shifting of the burden of proof to chemicals producers to show that certain enumerated chemicals are not toxic, she compares the Canadian approach to that used in the @ 2009 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA. 1

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