The Precautionary Approach and the International Control of Toxic Chemicals: Beacon of Hope, Sea of Confusion and Dilution

David VanderZwaag

Abstract


Toxic chemicals in the environment are a continuing concern. Nearly 80,000 chemicals are on the market in the United States; of those, 200 synthetic chemicals are found in measurable quantities in the bodies of Americans. More than 5 billion kilograms of toxic pollutants are released or transferred each year in North America. Even more alarming, basic toxicological information is lacking for most these chemicals.

Long-range transport of persistent organic pollutants (POPs), chemicals that are persistent and bioaccumulate, is a special concern particularly in the Arctic, which acts as a "sink." Examples of POPs include various pesticides, such as DDT, chlordane, aldrin, heptachlor and toxaphene, industrial chemicals such as PCBs (polychlorinated biphenyls), and unintentional byproducts such as dioxins and furans. Even commonly used chemicals, such as brominated flame retardants and fluorinated compounds (used as stain repellants and as non-stick surfaces on cookware) have found their way into Arctic food webs. In total, about 4300 organic chemicals, most having low or unknown levels of production, are thought to have Arctic bioaccumulation potential, while over 120 industrial organic chemicals and pesticides are considered high-production volume (greater than 1000 tons/year) and have been identified as having POP characteristics.

Elevated levels of POPs in both Arctic wildlife and human residents raise serious health concerns. Polar bears with high levels of contaminants may suffer adverse effects in reproduction and in their immune systems. Inuit mothers have been found to have two to eight times the level of various environmental contaminants in their blood compared to mothers living in the South. While it is difficult to precisely determine the effects on human health due to varying socioeconomic and lifestyle conditions, potential chemical synergies, limited toxicity studies, and a range of other factors, several subtle effects (immunological, cardiovascular and reproductive) have been identified by epidemiological studies in the Arctic.

The precautionary approach, often used interchangeably with the term precautionary principle, has been heralded as perhaps the most fundamental norm of international environmental law to better protect the environment from the threats of toxic chemicals. Precaution captures common sense notions evident in many cultures like "an ounce of precaution is worth a pound of cure" and "better safe than sorry." Precaution provides critical guidance for making environmental decisions where there is scientific uncertainty as to environmental effects of a proposed use or activity. Decision-makers following the precautionary principle are to err on the side of caution. The precautionary principle/approach is well established, as it has been embraced in over fifty international, legally-binding agreements and over forty non-binding instruments.

This Paper, through three images, highlights the rather uneasy relationship between the precautionary approach and the international control of toxic chemicals. First, the "beacon of hope" aspect of precaution is described whereby various strong versions, such as a reversal in the burden of proof, offer to help avoid the shoals of chemical harms to the environment and human health. Second, the "sea of confusion" is briefly navigated with a review of six confusing currents including definitional generalities and variations. Third, the "sea of dilution" reality in global conventions and initiatives, aimed at controlling toxic chemicals, is emphasized, in which precaution is marginalized or adopted in "watered down" forms.


Keywords


Environmental Law; International Law

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