The Precautionary Principle In The Protection Of The Marine Environment Research

In the present world, social economy and technology develop at a very fast speed. On the one hand, these developments greatly promote the advancement of the human society. On the other hand, they also bring to human kind various kinds of danger and harm, of which the degeneration of global environment is a representative example. What is more dangerous is that this kind of danger brought by environmental harm that the human being has to face will become even more serious.The environmental damage to the sea, which occupies 75% of the earth's surface, is much more serious. For a long time, human kind has been treating the sea as a natural dumping field. Depending on itself-cleaning ability, the sea disposes and decomposes great amount of discharges from the earth, dumpage on the sea and substances that had been burned. It also provides great amount of food for human kind. But the endurance of the sea is limited. The disrespect of sea made mankind begin to suffer the revenge of the nature - serious marine environmental problems appear within the entire globe. Laws and policies concerning the sea based on the assimilation capability are challenged. The Precautionary Principle was introduced into the field of marine environmental protection under this circumstance.This dissertation takes marine environmental protection as its background, and studies the basic theoretical problem, the implementation system of the precautionary principle, as well as its position in the international law. The whole dissertation is comprised of the Preface, the Main Body and the Conclusion. The Main Body of the dissertation constitutes 5 Chapters. The Preface introduces the background of the emergence of the precautionary principle, the purpose of significance of the selection of the topic, the current study on this topic, and the basic train of thoughts of the dissertation.Chapter One discusses the appearance and development of the Precautionary Principle, and its legal significance. First, the dissertation ascends the history of the emergence and development of this principle. As a legal concept, the precautionary principle first appeared in Germany. Its core is the society should try to avoid the harmto the environment by planning in advance carefully and preventing the potential harmful behaviors. Under the promotion of Germany, this Precautionary Principle was adopted by the Second International Conference on the Protection of the North Sea held in 1987, and it moved into the field of international law ever since. Gradually, it had been expressly laid down in the environmental protection documents concerning the sea area of Baltic Sea, the Black Sea and the Caribbean Sea. Except for the regional legal documents, global multilateral treaties and conference documents also make the Precautionary Principle as the basis of protection of marine environment. Later, the Precautionary Principle has been enlarged and extended to other fields of international environmental protection. Almost all of the documents passed after 1990 provided the Precautionary Principle, and its contents involve waste disposition (including the disposition of wastes both from the sea and from the earth), water pollution and air pollution, change of climates, control of dangerous articles, protection of ozonosphere, protection of biological diversity, and biological safety, etc.After the review of the history and development of this principle, this chapter focuses on the analysis of the definition of the Precautionary Principle. Within relevant legal documents or international treaties, there is no uniform provision on this principle. There even exist relatively big difference among some of the provisions. Revolving around whether there is a need to have a uniform definition of the Precautionary Principle, this chapter mainly studies the definition provided by the Second International Conference on the Protection of the North Sea, and points out the problems remaining within this definition and try to probe into the method of solving these problems. In view of the difficulty existed in the unification of the definition that is very hard to overcome, the definitions should be provided respectively under the guidance of the core contents and the spirits of the principle.In order to better understand the legal significance of the Precautionary Principle, this chapter also analyzes the relationship between the Precautionary Principle and the precautionary approach. Besides, this chapter, proceeds from the emergence and development of the principle of prevention, which is very easy to be confused with the Precautionary Principle, and studies the difference and inner relationship between them, and demonstrates the advancement of the Precautionary Principle, comparing with theprinciple of prevention.Chapter 2 is the analysis of basis of the Precautionary Principle being applied to the protection of the marine environment. It mainly includes the scientific basis, the economic basis, the legal basis and the ethic basis.The increase seriousness of the marine environment problem and the general existence of the risk of marine environment are the presupposition of the application of the Precautionary Principle. It should be made clear that today's marine environment problem is the accumulation of influence of mankind on the marine environment for many years. When the earlier mankind realized the marine environment, the legal and policy measures adopted were virtually the controlling measures based on the assimilation capability. Practice has proved that this kind of measures did not effectively hold back the depravation of the marine environment. Therefore, people began to examine this system again. Moreover, the development of the modern technology enabled mankind to move into a time of risk. Under the circumstance of scientific uncertainty, traditional rules of environmental protection are considered to be safe when there is no evidence to justify their harmfulness to the environment; but the lessons in practice urged us to believe that we should take a cautious attitude towards similar problems, just as the truth illustrated in the sayings that "An ounce of precaution is worth a pound of cure", or "Safety is better than apology". Thus, there needs to be a novel concept and idea to guard against the potential harm, and the Precautionary Principle just meets this need.The economic basis of the Precautionary Principle accords with the cost-benefit analysis. Owing to the inherent, common characteristics of the marine environmental resources, the solution to the problem of marine environment, including the precaution of the marine environment risk will inevitably encounter the external problems. As the theoretical basis of the precautionary principle, the economics analysis on the comparison of cost and benefit as a whole is reasonable. That is to say, as long as the action on the whole is beneficial to mankind, it should be allowed or encouraged, and when the action to the mankind is harmful on the whole, it should be prohibited. The article also analyzes concretely the problem involving the marine environment cost-benefit analysis and its limitations.The legal basis of the precautionary principle mainly relate to two basic principles of the international environmental law. One is the Principle of Common Interest, and the other is the Principle of Substantial Development. The problem of marine environmental protection itself is a global problem, and it concerns the interest of the mankind as a whole. So protection of marine environment is just the protection of human interest. And the obligation to protect marine environment is an obligation erga omnes. Therefore, the precautionary principle aimed at marine environment risk is also an important principle for the realization of the common interest of mankind. The connection of the precautionary principle and the Principle of Substantial Development lies in the following point: in order to implement sustainable development, relevant laws and policies must be established on the basis of the precautionary principle. Because the sustainable development contains an idea of inter-generation equity, therefore, the application of the precautionary principle should be operated in accordance with the interest of sustainable development and protection of future. The precautionary principle, in essence, is a concrete embodiment of the idea of inter-generation equity, and the realization of the inter-generation equity is also the basic legal value of the precautionary principle.The protection of the marine environment not only regulates the interpersonal relationship, but involves the relationship between man and nature and environment as well. Likewise, the precautionary principle also involves these two aspects. Therefore, from the point of ethnics, the precautionary principle in the marine environment protection not only involves the ordinary ethnic viewpoint on the interpersonal relationship, but also involves the viewpoints on environmental ethnics and environmental values. This is the ethnic basis of the precautionary principle.Chapter 3 deals with the application of the precautionary principle in the protection of marine environment. It mainly reviews the international and domestic legislations concerning the precautionary principle in the marine environment protection. This chapter is divided into 6 sections, most of which analyzes in terms of both international law and domestic law. Section 1 is mainly about the marine environmental pollution, which, in accordance with different sources of pollution, can be classified into pollution of the land-based pollution, sea dumping and burning, sea transportation of dangerousand radioactive substances, pollution produced by the ship and the pollution produced by the sea tasks, etc. Section 2 is about the protection of the sea biological resources, which is divided into two parts: the conservation and management of the sea biological resources, and the protection of the sea biological diversity. Each part sums up after review of both international law and domestic law.Overall, the earliest field of the application of the precautionary principle is the prevention and cure of pollution of land-based pollution. But generally speaking, land-based activities are under the jurisdiction of one country. Therefore, to have the precautionary principle in the international treaties to be implemented, there need to be the support of the domestic laws. And just because of this reason, plus the different levels of development of the countries in the sea areas and different understanding of the marine environment protection, there is no, up to now, global international treaty concerning the prevention and cure of pollution originated from the earth. The conventions on the marine environment protection that expressly adopt the precautionary principle are: OSPAR Convention (The Convention for the Protection of the Marine Environment of the North-East Atlantic), 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area, and the Amendment to the Convention for the Protection of the Mediterranean Sea against Pollution. The level of the economic development of the coastal countries along these sea areas is relatively high.There is a global international treaty on the prevention of sea dumping and burning in the international, that is The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. The 1996 Protocol of this convention expressly adopts the precautionary principle, and also employs such precautionary measure as anti-list. The dumping of highly poisonous substances, sea burning, sinking of the abandoned equipments on the sea are all prohibited, which expressly embodies the precautionary principle. In the aspect of transportation of dangerous and radioactive substances on the sea, general international treaties and domestic laws provide the Prior Informed Consent (PIC) Procedure, which is generally considered the embodiment of the precautionary principle. Nevertheless, this involves the problem of navigating system in relevant sea area. This chapter probes beneficially into this problemcombining the state practices.The 1995 the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks is the direct legal foundation of the precautionary principle being applied into the protection of fishery sources. The precautionary principle provided by this agreement is by far the most detailed and concrete among the current international treaties. So this chapter mainly studies and discusses it. The Agreement pinpoints the orientation of preservation of value of the precautionary principle, that is, it's basic obligation is to preserve fishery and maintain the sustainable survival of fish stocks. This overthrows the previous method of interpretation on the scientific uncertainty, and really realizes the new concept of environment protection insisted by the precautionary principle.Chapter 4 discusses the implementation and perfection of the precautionary principle in the protection of marine environment. Any legal provision can have its good effects only when it is implemented; otherwise it is a piece of paper, and the precautionary principle is no exception .For this reason, this article, sparing no words, pays great attention to discussion and research of this issue. Though in Chapter 1 the legal significance of the precautionary principle has been analyzed, it hasn't been set off to discuss because this issue relies on relevant international and domestic legislations in a great extent. So at the beginning of this chapter the elements of the precautionary principle are analyzed. One of the important features of the precautionary principle is the transfer of burden of evidence. One is transfer from proof of injury to proof of harmlessness; the other is transfer from the person proving injury to the person proving harmlessness. Because the precautionary principle exceeds the certainty of science, there arises the viewpoint that the precautionary principle is against science. However the science of the precautionary principle is not against science, instead, it contributes to the promotion of the development of science.The key of the precautionary principle to be implemented is the concrete measures. Combing relevant legislations in present domain of marine environment protection and practice, this article summarizes and induces the measures of the risk precaution in the domain of marine environment protection. Among these measures, some are powerful...