The Precautionary Principle and approach

Introduction

The Precautionary Principle is one of the key elements for policy decisions concerning environmental protection and management. It is applied in the circumstances where there are reasonable grounds for concern that an activity is, or could, cause harm but where there is uncertainty about the probability of the risk and the degree of harm.

The Precautionary Principle has been endorsed internationally on many occasions. At the Earth Summit meeting at Rio in 1992, World leaders agreed Agenda 21, which advocated the widespread application of the Precautionary Principle in the following terms:

'In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.' (Principle 15)

In Fisheries Management this precautionary approach has been defined in two international instruments:

the FAO Code of Conduct for Responsible Fisheries (CCRF); and
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 (UNIA).

Both of these share common wording and ideas. The wording used in the CCRF is:

'States should apply the precautionary approach widely to conservation, management and exploitation of living aquatic resources in order to protect them and preserve the aquatic environment. The absence of adequate scientific information should not be used as a reason for postponin or failing to take conservation and management measures.'

The CCRF is a voluntary, non-binding agreement, while the UNIA is now a binding agreement amongst signatory States and entered into force on 11 December 2001.

Precautionary Principle and the European Union

The EU Treaty contains a reference to the Precautionary Principle, but does not define it. The Council sought clarification by requesting the Commission to develop clear and effective guidelines for the application of the principle.

In 2000, the European Commission adopted a Communication on the use of the Precautionary Principle, which set out a number of steps to be followed. These were:

if a preliminary scientific evaluation shows that there are reasonable grounds for concern that a particular activity might lead to damaging effects on the environment, or on human, animal or plant health, which would be inconsistent with the protection normally afforded to these within the European Community, the Precautionary Principle is triggered;

decision-makers then have to determine what action to take. They should take account of the potential consequences of taking no action, the uncertainties inherent in the scientific evaluation, and they should consult interested parties on the possible ways of managing the risk. Measures should be proportionate to the level of risk, and to the desired level of protection. They should be provisional in nature pending the availability of more reliable scientific data;

action is then undertaken to obtain further information enabling a more objective assessment of the risk. The measures taken to manage the risk should be maintained so long as the scientific information remains inconclusive and the risk unacceptable.

European implementation

Following a request from the European Commission, the International Council for the Exploration of the Sea (ICES) have developed a procedure for implementing a precautionary approach in its advice to the Commission on fish stocks and future catch levels. This is done by setting reference points - in effect trigger levels at which management action should be taken. ICES identify two types of reference points: 'limit' and 'precautionary'. The intention is that fish stocks are managed so they do not exceed the precautionary limit reference point. Fisheries managers can, therefore, be reasonably confident that limit reference points - at which there is a serious risk of stock collapse - are never reached.

The precautionary reference figures produced by ICES are used by Member States to negotiate catch quotas. Unfortunately, these negotiations often result in quotas exceeding the ICES recommendations. Many fish stocks are now at levels below the precautionary reference point and some are below the limit reference point, thereby requiring drastic recovery plans.

Limitations of the precautionary approach as currently applied

Over the last few decades, action under the Common Fisheries Policy (CFP) has been far from being effectively precautionary. In January 2003, a new CFP was issued. Since then things have begun to improve:

Catch quotas tend to be set too high, and neither allowable catch nor recorded landings reflect actual mortality. Catch quotas are set a target for 'catch' which only relates to what is officially landed. Other unquantified elements of mortality arise through (i) bycatches, (ii) discards, and (iii) misreported landings. The incentives for fishermen 'at the point of catch' are inconsistent with the overall objective of sustainable use for the fishery as a whole. In the mixed demersal fishery of most European waters, this creates huge wastage of fish through the anomalous incentive for fishers to catch and discard species which have reached their catch quota for the year, and only land the most marketable individuals of species which are below the catch quota. Although the problem of differences in ICES quota advice and that set by the member States has not been addressed, the European Commission has recently introduced proposals to reduce discarding and also to encourage the use of more 'environmentally-friendly' fishing gear

The precautionary approach has only been applied to a selected sub-set of commercial fish stocks for which ICES advice has been requested. Stocks of other species have not yet received such consideration, for example, sharks, skaltes and rays (collectively known as elasmobranchs) and many deep-water species whose stocks are particularly sensitive to fishing;

The precautionary approach, as has been applied, does not address the wider effects of fisheries on the ecosystem and marine environment. However, recently measures have been introduced to improve this. For example, emergency protection for the Darwin Mounds, an area for the deep water coral Lophelia pertusa, was introduced under the CFP and is permanently protected from August 2004, whilst in February 2004, other deep water coral sites in the Azores, Madeira and the Canary Islands were also proposed for protection and in March 2004 regulations were introduced to reduce harbour porpoise bycatch, which involve the use of 'pingers' on bottom-set gillnets and entangling nets.

These latter issues may be addressed through an ecosystem-based approach to fisheries management and wildlife conservation. This aims to protect or restore the function, structure, and species composition of an ecosystem while providing for its sustainable socio-economic use. However, quite clearly, the current implementation of the Precautionary Principle in relation to fisheries management is partial and inadequate.

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Effective precautionary approaches point towards:

for all fisheries, assessing the need for closer oversight of actual fish mortality, rather than landings. This may involve more effective monitoring of fishing effort at sea - e.g. via broadening the use of vessel monitoring systems;

assessing the need to decrease outputs (i.e. lower catch limits) especially for fisheries at the limit;

widening the approach taken through input controls - e.g. through spatial management using permanent and temporary exclusion zones, or by limiting days at sea;

considering the need to develop indicators (both for the fishery and for the wider environment) to provide feedback on the effects of fishing activity;

reviewing the responsiveness of existing management structures to different interests;

non-quota and new fisheries should be the subject of environmental assessment and improved methods of control;

habitats and species afforded strict protection under EC legislation should be subject to a high level of precaution.

Strategic implications

In the longer term, we see the need to build confidence amongst all interest groups that a sustainable fishery is a desirable outcome. This will include removing the fear of 'precaution' as a management principle, encouraging confidence that precaution will not be used unreasonably to restrict sustainable fishing activity, and thereby create a permissive environment for decision-makers to take precautionary decisions.

We see the need to move towards management regimes which reward, and foster the values of, good stewardship. The effectiveness of precaution will be greatly enhanced where it reinforces this kind of ownership and stewardship of the resource. Under these circumstances precautionary measures are more likely to be widely supported and implemented by fishermen, meanwhile reducing reliance on stringent (and costly) enforcement mechanisms.