The Burden of Proof within the Scope of the Precautionary Principle: International and European Perspectives

Abstract

The precautionary principle (PP) has been developed as a response to the insufficiency of scientific data regarding possible future risks of human actions to the environment and human health. It has been incorporated into almost every international environmental treaty for the last three decades. Since its first appearance in the international environmental arena, its legal content and status has been the subject of several academic studies. However, it is very unlikely that commentators will reach a consensus in the near future. On the other hand, the decisions of the international courts and tribunals do not help to clarify the aforementioned issuesas well. As a result, the PP remains one of the most contentious concepts of environmental law. One of the controversial issues that the PP leads toisthe so-called shifting the burden of proof (BOP). In contrast to the traditional BOP rule, it has been argued that the PP shifts the BOP from the opponents of an activity or a product to their proponents. However, this argument creates great discussion among scholars. Some commentators claim that the PP does not change the traditional approach, whereas others state that it does only in certain cases. Some other commentators hold a more strict approach by arguing that the PP absolutely reverses the BOP rule. This study focuses on the BOP rule within the scope of the PP, and examines international and European approaches. With this respect, first, it presents basic information about the PP which will be linked with the BOP rule. Then, the concept of the BOP and its reversal will be analysed and some examples regarding the reversal of the BOP in the international environmental documents and case law will be presented. Subsequently, the study will deal with the European approach of the PP and the BOP in general and in practice as well. Finally, findings of the study will be summarised in the conclusion.