Environmental Law, Articles


The precautionary principle in international, European and Dutch wildlife law

Prof.dr. Chris W. Backes LL.M.

Dr. Jonathan M. Verschuuren(1)

published in: Colorado Journal of International Environmental Law and Policy, vol. 9, no. 1, p. 43-70 (ISSN 1050-0391)

I. INTRODUCTION

The precautionary principle plays an important role in international treaties concerning the protection of nature and the environment. Not only has it acquired a prominent position in the Treaty of Rome establishing the European Community (EC-Treaty)(2) and in the Rio Declaration (United Nations Conference on Environment and Development, UNCED),(3) it also forms the basis of various important treaties, declarations and agreements concerning the protection of the sea. It is remarkable that in national discussions about wildlife law the precautionary principle has up to now enjoyed only limited popularity. This now seems to be gradually changing. Recently in the Netherlands a study, commissioned by the Ministry of Housing, Spatial Planning and the Environment, has been carried out in which environmental legislation was examined for compatibility with the precautionary principle.(4) The conclusion of this study was that the most important parts of Dutch environmental legislation in themselves offer sufficient room to make decisions which do justice to the precautionary principle.(5) At the same time, however, it was observed that the principle is not explicitly laid down in environmental legislation, rendering the practical application of the principle uncertain.(6)

An additional complication is the divergent meanings usually attributed to the principle.(7) Depending on the field of law in which the precautionary principle functions, its meaning may differ. Briefly, the principle means that measures to prevent damage to the environment may not be deferred for the single reason that insufficient scientific evidence exists about the environmental effects of a particular activity. From this it may be concluded in a number of situations that a planned activity may be allowed only when there is scientific certainty that this activity has no detrimental effect on the environment. In such cases the principle is referred to as the principle of in dubio pro natura.(8)

These preliminary descriptions of the precautionary principle show that it has great potential impact on decision-making involving wildlife. Lost ecological features are often difficult or even impossible to restore. Moreover, nature (especially in the Netherlands) is extremely scarce, but essentially of good quality. A well-functioning ecosystem is after all an important prerequisite for human existence and all economic activities. In addition there is the complexity of the problem (what are the consequences of certain human activities on ecosystems?).

This article is a study into the potential effect of the precautionary principle on legislation concerning nature conservation.(9) We will try to extract this meaning from international, European and national (i.e. Dutch) developments concerning the precautionary principle. This article is the result of a study commissioned by one of the most important advisory institutions in the area of wildlife protection in the Netherlands, the Council for Nature Conservation.(10) Our approach is as follows. First, in section 2, we present a brief survey on the precautionary principle in international treaties, the most important among them (at least for the member states of the European Union) being the EC Treaty(11) and the treaties concluded during the UNCED in Rio de Janeiro in 1992.(12) In the process we will look at the quality in which the precautionary principle presents itself and the meaning attached to it in these treaties. In section 3 we focus on the most important Directive(13) of the European Union concerning wildlife protection, the Habitat Directive(14). Which role does the precautionary principle play in this important Directive which has a great influence on wildlife law in the Member States of the European Union? In section 4 we will briefly discuss the role of the precautionary principle in Dutch wildlife law, as well as the influence of the Habitat Directive on national legislation. In section 5 we will present some conclusions about the meaning of the precautionary principle for national legislation concerning wildlife protection.

II. THE PRECAUTIONARY PRINCIPLE IN TREATY LAW

A. Introduction

The precautionary principle excites a great deal of interest mainly because it occupies such a prominent position in the various treaties signed during the UNCED in 1992. It is laid down as principle 15 in the Rio Declaration on Environment and Development,(15) in Art. 3 paragraph 3 of the UN Framework Convention on Climate Change(16) and in the preamble of the Convention on Biological Diversity.(17) Almost simultaneously the principle found a niche in the EC Treaty, in Art. 130R, paragraph 2.(18) Before that it was only referred to in a variety of specific treaties and agreements relating to the protection of water quality and of the ozone layer. The precautionary principle cannot be found in treaties concerning wildlife protection, which are often of an earlier date.(19)

To be able to fully assess the potential effect of the precautionary principle on international wildlife law, it is useful to carry out further analysis on the substance of the principle in the context of international environmental law.(20) This analysis (the result of which is this article) was carried out by means of studying diverse codifications of the principle in international law. In the process more than one meaning may arise; we assume that the principle may have a different meaning, depending on the nature of the document (e.g. treaty or declaration of intent) in which it is laid down. First we will discuss the EC Treaty (paragraph B)(21) and subsequently the UNCED documents as accepted at the 1992 Rio de Janeiro conference (paragraph C), followed by the specific treaties in the field of wildlife (paragraph D).

B. The precautionary principle in the EC Treaty(22)

The second paragraph of Art. 130R of the EC Treaty reads as follows:(23)

'Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventative action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. (...)'

As is clear from this quotation, the precautionary principle is merely mentioned in the EC Treaty; its meaning is not specified. In the literature(24) the principle is considered to be important mainly in combination with Art. 130R, paragraph 3, which (among other things) states that in deciding its policy, the Community should take into account 'available scientific and technical data'. The precautionary principle now prevents this provision from being 'used' to omit appropriate action. Indicative and tentative scientific data might already reveal the necessity for new measures to protect the environment.(25)

Also in other documents of the Union the principle is merely referred to, without it being further elaborated.(26) In the 'Fifth Action Programme for the Environment and Sustainable Development' it is stated that the policy choices of the Community should not merely be based on environmental costs and benefits, but also on the need for precautionary measures.(27) It follows, among other things, that uncertainties about the soundness of specific objectives or about the urgency of particular measures are inevitable; yet, invoking the precautionary principle, these measures are announced in the Action Programme, without incidentally specific measures being referred to.(28)

In drafting environmental directives(29) the precautionary principle is only sporadically referred to. An example from before the Maastricht Treaty (30) is the EC directive concerning a ban on the importation of seal products.(31) Scientific uncertainty existed about the size of the population of hooded seals and about the capacity of that population to cope with the exploitation at that time. Despite the fact that (or, to use "precautionary terminology": whereas) there is no full scientific certainty on this subject, the EC imposes a total import ban.(32) Over the past few years, general principles have been more frequently mentioned in preambles;(33) the precautionary principle, however, is not usually among them. This is owing to its relative novelty and the slow decision-making processes within the Union.(34)

Although the European Court of Justice has the ability to contribute to the importance of the principle in national and European law, simply by reffering to the principle in cases brought before the court, it is also remarkable that there has been no explicit application of the principle by the European Court of Justice, at least up till now.(35) In some cases however the Court does seem to base its decisions on the precautionary principle, without explicitly mentioning it. There are two judgments involving the Birds Directive in which the Court does not allow certain measures unless there is scientific proof that those measures are not harmful.(36) On a preliminary question of whether the closing date of the hunting season might be spread for different species, the Court ruled that this constituted a violation of the Birds Directive, unless the Member State involved could prove, based on specific scientific and technological data concerning each special case, that a spreading of the closing date of the hunting season did not in any way impair the full protection of the bird species affected by this spreading.(37) Here, the Court is basically applying the precautionary principle.

We will not now go into the role of the precautionary principle in the Habitat Directive. This subject will be discussed in detail in section 4.

In conclusion we can state that the precautionary principle is laid down in the EC Treaty, without its meaning being explicitly made clear. The principle is exclusively aimed at the Community itself and has so far been applied only to a very limited extent in the jurisprudence. On the other hand the European Court of Justice implicitly relied on the precautionary principle in a number of wildlife cases.

C. The UNCED documents

1. Rio Declaration on Environment and Development(38)

Principle 15 of the already mentioned Rio Declaration of 1992 reads as follows:

'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.'

It will be clear that in applying the precautionary principle it is not always possible to prevent all damage to nature and the environment; nor will this usually be the thing that is aimed for. Also in those cases in which it is known beforehand that an activity will be harmful to ecological values, there will always be a weighing of the advantages (in economic terms) on the one hand against the costs (damage to ecological features) on the other. The explicit question relevant to the precautionary principle will then be the issue of whether, despite the lack of scientific data about the effects on nature, an activity can or must be prohibited or whether (possibly expensive) measures can or need be imposed for the protection of the ecological features.

The precautionary principle in the Rio Declaration is only relevant to cases where there is a danger of 'serious or irreversible' damage. This formulation aims to incorporate an element of proportionality in the principle; if the threat of damage to the environment is limited and the advantages of the detrimental activity (or the costs of the measures to be taken) are considerable, then the precautionary principle cannot be appealed to.(39) In other words, in those cases the lack of certainty about the (presumed) detrimental effect can be a reason for waiving measures.(40)

As is clear from the second sentence of principle 15, only the (non-)omission of cost-effective measures is concerned. The element of cost-effective measures is characteristic of the formulation in the Rio Declaration and is lacking in the precautionary principle in other documents. It introduces an additional weighing element: if non-cost-effective measures are involved, the lack of scientific certainty may still be a reason to defer these measures. The required measures in the case of insufficient scientific certainty must therefore be proportional in view of the costs involved, the degree of scientific uncertainty and the environmental benefit to be obtained through those measures.(41) As with all principles, this principle of the Rio Declaration leaves much room for separate, national, interpretation. In the Netherlands for instance, a recent study, commissioned by the Netherlands Ministry of Environment, was carried out into a further definition of principle 15 of the Rio Declaration with the view to applying it in Dutch environmental law.(42) The conclusion of the study was that the precautionary principle can only be applied if legal provisions exist which offer room for taking environmental measures even in situations in which full scientific certainty is lacking. By using formulations such as 'the consequences for the environment which may result from the [activity]' (as in Art. 8.8 of the Dutch Environmental Management Act(43)), room is created for applying the precautionary principle.

2. UN Framework Convention on Climate Change(44)

The effect of the Rio Declaration can be felt in other treaties. This is clearest in the Convention on Climate Change, also concluded in Rio de Janeiro (4 June 1992). The precautionary principle played an important role in the drafting of this treaty, as concerns the problems of climate change and the effect of human activity (through the emission of CO2) on the climate, simply because there is no conclusive scientific evidence about the causal link between CO2 emissions and climate changes.(45) Art. 2 paragraph 2 provides:

'The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective (...)'

3. Convention on Biological Diversity(46)

The preamble to the Convention on Biological Diversity refers to the precautionary principle, but also provides a sequence in the arguments to be used: the measures must be based as much as possible on scientifically established facts. Only if these are lacking and there is also a significant potential threat to the environment, can measures be taken - on the basis of the precautionary principle - in order to avert this potential danger, pending the development of scientific data that might serve as a guideline, by stating:

'(...) Aware of the general lack of information and knowledge regarding biological diversity and of the urgent need to develop scientific, technical and institutional capacities to provide the basic understanding upon which to plan and implement appropriate measures,

Noting that it is vital to anticipate, prevent and attack the causes of significant reduction or loss of biological diversity at source,

Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat, (...)'

Although this formulation is similar to that of principle 15 from the Rio Declaration, it is remarkable that contrary to the Declaration, no 'cost-effective measures' are mentioned here,(47) which in our opinion would facilitate taking precautionary measures for the protection of biodiversity. The precautionary principle is not further defined in the treaty. However, the document does contain various provisions aimed at increasing the scientific knowledge about biodiversity, including where concrete projects are concerned. Thus, article 14 describes the duty 'to introduce appropriate procedures requiring environmental impact assessment of proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects' (emphasis added). The use of the words 'are likely to have' expresses the fact that the precautionary principle is central here: even if there are potential adverse effects on biodiversity and there is no 100% scientific certainty about this, an impact assessment must be carried out.(48)

D. The precautionary principle in other international legal documents

Various codifications of the precautionary principle can also be found in international treaties which have not or have been only marginally inspired by the Rio conference. We mention some of the more important ones below:(49)

Convention on the Protection and Use of Transboundary Watercourses and International Lakes, article 2 paragraph 5(50)

The parties shall be guided by the precautionary principle, by virtue of which action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances, on the one hand, and the potential transboundary impact, on the other hand; (...)

Declaration of Esbjerg on the Protection of the Wadden Sea(51)

The common policies (...) will be further implemented based on (...) the precautionary principle, i.e. to take action to avoid activities which are assumed to have significant damaging impact on the environment, even when there is no sufficient scientific evidence to prove a causal link between activities and their impact; (...)

The above examples show that the precautionary principle is an important feature in international water quality law and is defined more or less similarly. It always involves taking precautionary measures even if there is no conclusive evidence about the causal link between a planned activity and the damage it might cause. Usually preventive measures are only laid down in case there is no scientific certainty about the negative impact of a particular activity. In this case the mere assumption of potential damage will not be considered a sufficient reason to impose measures or to prohibit an activity altogether. There must be more to it: the case must be almost proven; it is only the final condition for the justification of the planned measures, i.e. full scientific evidence, which is lacking. In this case only must measures be imposed on the basis of the precautionary principle.

Sometimes, however, we encounter more flexible descriptions where measures may already be imposed on the basis of the precautionary principle in situations in which there is no conclusive evidence. In such a case the duty to take measures to prevent damage to the environment may arise sooner than in the case mentioned earlier. The following citations offer examples of this:

Convention for the Protection of the Marine Environment of the Northeast Atlantic, article 2 paragraph 2(52)

Parties shall apply the precautionary principle, by virtue of which preventive measures are to be taken when there are reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine environment may bring about hazards to human health, harm living resources (....), even when there is no conclusive evidence of a causal relationship between the inputs and the effects; (...)

Convention on the Protection of the Marine Environment of the Baltic Sea Area, article 3 section 2(53)

'The contracting parties shall apply the precautionary principle, i.e., to take preventive measures when there is reason to assume that substances or energy introduced, directly or indirectly, to the marine environment may create hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea even when there is no conclusive evidence of a causal relationship between inputs and their alleged effects.'

It is remarkable that in some treaties it is essentially the available scientific knowledge that is chosen as the one source on the basis of which measures are taken, without the precautionary principle even being mentioned. This is the case in for example the Protocol of Sofia(54) to the Convention on Long-range Transboundary Air Pollution:(55)

'Taking into consideration existing scientific and technical data on emissions (...), as well as on control technologies (...); Recognizing that scientific and technical knowledge of these matters is developing and that it will be necessary to take such developments into account when reviewing the operation of this Protocol and at deciding on further internationally agreed measures to limit and reduce emissions of nitrogen oxides or their transboundary fluxes.'

Turning the argument around like this could suggest a reversal of the burden of proof: an activity can be allowed only if conclusive scientific evidence exists that it is harmless. We see a similar construction in national legislation concerning medicines and pesticides in a number of countries, the Netherlands among them.

Of course the application of the precautionary principle does not mean that it is no longer necessary to look for a scientific basis for measures to protect the environment. This is notably proclaimed in the preamble to the Copenhagen Convention for the protection of the ozone layer (23 November 1992) when the Montreal Protocol(56) was tightened up:

Determined to protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it, with the ultimate objective of their elimination on the basis of developments in scientific knowledge (...)

The most exhaustive description of the precautionary principle can be found in Annex I to the declaration prepared for the First European 'Seas at risk' Conference.(57) This was an NGO Conference so the juridical status of this declaration was very limited. Since NGO statements such as this one do not issue from states, they do not constitute international law. The declaration reflects the opinion of the international environmental movement about the precautionary principle and thus contributes to a better definition of the principle and to its gradual integration into the legal culture. This helps principles to acquire significance. Eventually the effect of this declaration will therefore be felt in international legislation, e.g. because it is adopted in treaties or because, as common law, it affects the application of the precautionary principle in international law.

Final Declaration of the First European 'Seas at Risk' Conference, Annex I(58)

The principle of precautionary action requires that:

1. the lack of scientific certainty regarding cause and effect is not used as a reason for deferring measures to prevent harm to the environment. Science, while important in providing evidence of effect, is no longer required to provide proof of a causal link between pollutant/disturbing activity and effect, and where no clear evidence is available one way or the other the environment must be given 'the benefit of the doubt';

2. the environmental implications of each and every planned activity are considered first - the use of the 'economic availability' reservation in the application of precautionary measures, e.g., when considering the adoption of clean or cleaner technology/production processes, is inconsistent with this, and must be abandoned;

3. the 'burden of proof' is shifted from the regulator to the person or persons responsible for the potentially harmful activity, who will now have to demonstrate that their actions are not/will not cause harm to the environment;

4. if the 'worst case scenario' for a certain activity is serious enough then even a small amount of doubt as to safety of that activity is sufficient to stop it taking place;

5. potentially harmful activities are avoided where, either public debate has not concluded the activity to be a social necessity, or less harmful alternatives exist (this is sometimes referred to as the principle of Avoidance, but is a key feature of the principle of Precautionary Action and a logical consequence of a Clean Production approach).

The primary means of applying the principle of Precautionary Action is through the adoption of Clean Production methods, the establishment of Environmental Management Systems and the use of Environmental Impact Assessments.

Here again under 1 it is stated that the lack of scientific certainty regarding the causal link between a certain activity and harm to the environment may not be used as a reason for deferring measures. The next items describe more concretely what this means. Notably the economic weighing factor incorporated in the precautionary principle of the Rio Declaration (namely that only cost-effective measures need to be taken when the precautionary principle is applied) is explicitly rejected in the present declaration. Under 2 it is stated that the precautionary principle must be applied without reserve on the basis of economic considerations. Furthermore, under 3 it says that the burden of proof is shifted from the regulator (for example the licensing authority) to the person carrying out an activity (for example the company applying for the licence) and it is indicated that in such cases the 'worst case scenario' must be taken as a point of departure. If this scenario should reveal a potentially detrimental effect on the environment, the precautionary principle must be applied even though the probability that this scenario may arise is very small (4). Finally item 5 states that an activity that is potentially damaging to the environment will not be carried out if less harmful alternatives exist or if public debate has not decided that the activity is socially necessary.

E. Conclusion

The above examples show that the codifications of the precautionary principle in international environmental law (in a broad sense) show that many different modalities of the principle exist. In this context it is remarkable that the nature of the codification of the principle also varies. Whereas for example the gist of the formulation of principle 15 of the Rio Declaration is still rather general and unexplicit, in the Final Declaration of the First European 'Seas at Risk' Conference (a declaration issued during an NGO conference which does not have the status of international law) the definition of the principle specifies a number of fairly concrete discretionary rules. In this case we are therefore, at least partially, no longer dealing with a principle of law, but rather with legal norms.(59) Also as regards the precautionary principle in international environmental law, the principle seems to have gradually evolved into a legal norm.(60)

Summarizing, in spite of the many differences, the following general concluding remarks can be made:

1. especially since the 1990s, the precautionary principle has been an important feature in many international environmental treaties and declarations;

2. generally, on the basis of the principle measures are required if full scientific certainty about the consequences for the environment of a certain activity is lacking but all other conditions for taking measures are fulfilled (the proof is almost fixed, but not entirely scientifically conclusive). There are variants that go further and already impose precautionary measures when there are reasonable grounds for suspecting a certain activity of having a detrimental effect on the environment.

3. the most detailed description, as laid down in the Seas at Risk Declaration, adds a number of elements to this central meaning of the precautionary principle, namely a shift in the onus of proof towards the party who wants to carry out an activity, the duty to assume the 'worst case scenario', the duty to apply the precautionary principle even when there is a small amount of doubt about the potentially harmful effect if the damage might be considerable, and the obligation to prove in public debate the necessity of the activity in question and - if possible - to choose less harmful alternatives;

4. in another more advanced definition of the precautionary principle the `burden of proof' is reversed; a potentially harmful activity may only be undertaken if it can be demonstrated (usually by the party responsible for the activity) that sufficient scientific evidence exists proving that no harm will occur.

5. the Rio Declaration and the Framework Convention on Climate Change have a more restricted version of the precautionary principle (i.e. with fewer guarantees for the protection of the environment): on the basis of the precautionary principle in these treaties, in situations in which full scientific proof is lacking, only those measures are allowed which are cost-effective. It is precisely such economic considerations which are excluded from the process of balancing pros and cons in the Seas at Risk Declaration;

6. in all versions of the precautionary principle in international environmental law, the principle of proportionality turns up in one form or another.

III. THE PRECAUTIONARY PRINCIPLE IN EU LAW

A. Introduction to EU wildlife law

As has been argued just now, the EU should on the basis of Art. 130R of the EC-Treaty (61) be guided by the precautionary principle in its common policy on the environment. This chapter is a study into the question of whether and how this treaty principle has been translated into EU wildlife law.

Nature conservation within the EU is primarily the responsibility of the Member States and is an matter of national, and in our case Dutch law.(62) At the same time there is of course a clear European dimension to the issue of wildlife law.(63) Wildlife features and the threat they are faced with do not stop at national borders. Coherent ecosystems usually cover several countries. Well-known European examples of these are the Wadden Sea, the Alps and the Mediterranean. The protection of such transboundary ecosystems requires concerted action by the Member States concerned. The correlations between such transboundary ecosystems, wildlife sites and protected landscape areas are so numerous and so complex that coordinating activities by the EU seem necessary. Another aspect is the fact that certain species and biotopes are common nationally, but are extremely rare in a European context. Examples are the Irish bogs and certain biotopes in the Mediterranean area. From a European point of view, the protection of areas in which such biotopes are situated is therefore of the utmost, supranational importance. In this context it can be argued that these areas belong to the European heritage and deserve protection as such.(64)

Therefore, the EU has for a number of years been paying special attention to the issue of wildlife protection and to wildlife law. A great number of decisions and regulations and some directives are entirely or partly aimed at the protection of European wildlife.(65) The wildlife protection policy of the EU has a twofold objective. Firstly, it is aimed at rendering special protection to areas and species which can be counted as being a part of European heritage. The second important objective is the preservation of the correlations within and between the different ecosystems in Europe. Both objectives form the basis of the resolution to set up and protect a European ecological network called Natura 2000.(66)

In our observations we will restrict ourselves to EU Directive 92/43 on the conservation of natural habitats and of wild fauna and flora (hence Habitat Directive) of 21 May 1992.(67)

B. The EU Habitat Directive - an overview

This Directive forms the core of EU wildlife protection and wildlife law and offers the juridical instruments to realize the European ecological network Natura 2000.(68) The Habitat Directive contains provisions on the protection of species and of natural habitats and sites. An Annex on the basis of Art. 12 of the Habitat Directive lists a number of species which must be strictly protected by the Member States. Member States must prohibit among other things the deliberate capture or killing of specimens of these species in the wild, the taking of eggs from the wild, and the destruction of breeding grounds and resting places as well as the keeping or sale of specimens taken from the wild. A similar provision is contained in Art. 13 Habitat Directive regarding the strict protection of plant species. Art. 15 includes the duty to ban a number of forms of capture. Art. 16 Habitat Directive includes the possibility for Member States, under certain substantive and procedural conditions, to derogate from the prohibitions in art. 12ff Habitat Directive 'provided that there is no other satisfactory alternative.' The interpretation of the various conditions is sure to raise many problems in the future.

The core of the provisions aimed at protecting wildlife areas and habitats, is the duty of Member States formulated in Art. 3, paragraph 2 of the Habitat Directive, to classify certain areas as 'special protection areas' with a view to realizing a coherent European ecological network (Natura 2000). A distinction is made between natural habitat types and priority natural habitat types on the one hand and between habitats of species and priority habitats of species on the other.

Pursuant to Art. 6 Member States will establish the necessary conservation measures for the special protection sites to prevent the quality of the habitats from deteriorating or to avoid disturbance of the species for which the areas have been designated 'in so far as such disturbance could be significant in relation to the objectives of this directive'.(69)

Art. 6 paragraph 3 prohibits the permission to carry out any project or plan which could affect the natural features of habitats. This ban is not restricted to projects or plans to be carried out within the designated areas. The possibilities for an exemption to the ban in Art. 6 paragraph 3 are set out in Art. 6 paragraph 4 Habitat Directive. Generally, plans and projects, in spite of their potential negative impact as mentioned in paragraph 3, can be permitted 'in the absence of alternative solutions' and only if there are 'imperative reasons of overriding public interest, including those of a social or economic nature'. Subsequently in the second part of Art. 6 paragraph 4 the criteria become stricter where it concerns an area hosting a priority natural habitat type and/or a priority species. For these areas Art. 6 paragraph 4 Habitat Directive sets out more limited considerations to allow potentially detrimental activities.(70)



C. The precautionary principle in the Habitat Directive

The Habitat Directive does not contain an explicit reference to the precautionary principle or to the relevant passage from Art. 130R EC Treaty, nor is the precautionary principle referred to in the preamble to the directive, nor in the explanatory documents nor in the legislative history. The question then arises whether in spite of this, the juridical framework created by the directive still meets the fundamentals and criteria incorporated in the precautionary principle.

As has been stated above, paragraphs 3 and 4 of Art. 6 Habitat Directive contain relatively detailed procedural and substantive conditions with regard to decisions permitting activities which might be harmful to areas which have been listed as protected zones.(71) Thus, on the basis of Art. 6 paragraph 3, every plan or project 'likely to have a significant effect' on the protected habitat, is subject to an "appropriate assessment" of its expected impact. The competent authorities may in principle agree to such a plan or project 'in the light of the conclusions of the assessment of its implications ... only after having ascertained that it [the project] will not adversely affect the integrity of the site concerned.'

This seems to meet the requirements of the precautionary principle. If there are uncertainties about the effect of the project on the natural features of the area, it must apparently not be allowed according to Art. 6 paragraph 3. In that sense this would be an instance of a remarkably far-reaching form of the precautionary principle: in case of any doubt about the harmfulness of a project, a decision in dubio pro natura must be made and the project must be abandoned.

Art. 6 paragraph 4 Habitat Directive, however, allows exceptions to be made to the ban on harmful activities. Under the provisions of paragraph 4, also plans and projects can be allowed of which it is certain that they will harm the natural features of the protected habitat. It can therefore be inferred that plans and projects which have only a potentially harmful effect will also be permitted. Still, in such a situation the conditions set out in paragraph 4 must be observed. Taken together, paragraphs 3 and 4 of Art. 6 Habitat Directive therefore do not have the effect that under no circumstances permission may be given for activities of which the ecological impact is uncertain.

In our view, both provisions suggest that in case of uncertainty about the effect of an activity the damage that could possibly result should be taken as a point of departure when applying paragraph 4 of Art. 6 Habitat Directive. Art. 6 paragraph 3 only applies if there is certainty that no damage will occur. Art. 6 paragraph 4 applies in cases in which it is likely or certain that damage will arise. In that case what determines the weighing of interests is the possible damage that will result.(72) To that extent it may be concluded that the precautionary principle is formulated in Art. 6 Habitat Directive. If it cannot be ruled out that damage will occur and a licence is not issued on the basis of Art. 6 paragraph 3 Habitat Directive, then the 'worst case scenario' must be taken as a point of departure. A licence may not be issued unless all possible damage that could arise can be shown to be justifiable on the basis of the reasons set out in Art. 6 paragraph 4.(73) Therefore Art. 6 offers a protection of the most valuable habitats of Europe which is in accordance with the precautionary principle, at least in theory.

IV. THE PRECAUTIONARY PRINCIPLE IN DUTCH WILDLIFE LAW

AND THE INFLUENCE OF THE HABITAT DIRECTIVE

A. The precautionary principle in the Netherlands

Directives, however, normally have no direct binding effect in the Member States. They contain requirements for the national laws of the different states.(74) Thus, in concrete cases first of all national rather than EU law is applied.(75) In the Netherlands the sites covered by the Habitat Directive that form part of Natura 2000 and other important habitats are usually classified as nature protection areas on the basis of the Nature Conservancy Act.(76) Pursuant to Art. 12 Nature Conservancy Act a licence is required for all activities which have a detrimental effect on such areas and on the habitats hosted by those areas. The Dutch Nature Conservancy Act, however, mentions no conditions at all on the basis of which such a licence can or must be granted.

The question is whether within the national system the precautionary principle must be applied. This problem can be split up into two subquestions. The first question is whether the licence system also applies for activities of which it cannot be said with any kind of certainty whether or not they will cause damage to a nature protection area. The second question is what the effects of these uncertainties about the occurrence and extent of the damage to the protected areas will be for the granting of licences.

The answer to the first question is on the whole positive. Although this cannot be directly inferred from the text of the Act,(77) according to the jurisprudence, potentially harmful activities, too, require a licence under Art. 12 Nature Conservancy Act.(78) However, there are also examples which reflect a different interpretation of Art. 12 Nature Conservancy Act. One of these examples concerns the Wadden Sea. The Wadden Sea is the biggest nature protection area in the Netherlands and one of the most important wetlands in Europe.(79) The comment on the classification of parts of the Wadden Sea as nature protection area of 18 May 1981 states that a licence is only required for activities which `are evidently harmful to the proper functioning of the Wadden Sea as nature protection area'. On the basis of such an interpretation, Art. 12 Nature Conservancy Act certainly does not comply with the requirements of the precautionary principle.(80) Also in case law examples can be found in which the licence requirement in relation to the likelihood of damage is interpreted more restrictively than usual.(81)

The answer to the second question seems to us to be less favourable. Since the law does not set out any criteria to go by in granting licences and since the weighing of interests is guided merely by general principles of proper administration, there does not seem to be sufficient assurance that the potential damage that could occur will be taken into account, thus doing justice to the precautionary principle.(82) The case law which we studied seems to confirm this supposition. Two judgments were found in which the judge reproached the licensing authority for having insufficiently studied the potentially harmful effect of the activity in question and for having insufficiently argued its assumption that no actual damage would occur.(83) In a judgment concerning drainages around the "Groote Peel", a rare high peat moor district, a Dutch administrative judge found that in the framework of the licence requirement under Art. 12 Nature Conservancy Act it was not only relevant whether the individual drainage applied for causes damage. In addition, the cumulative effect of all drainages within a particular zone had to be taken into account. The argument that it could not be proved that precisely the drainage applied for would have a detrimental effect was accordingly dismissed.(84) This judgment, too, might be understood as confirming the validity of the precautionary principle in granting licences under Art. 12 Nature Conservancy Act. However, there are also judgments illustrating that the precautionary principle is not applied under Art. 12 Nature Conservancy Act in situations in which the harmfulness of the planned activity is uncertain. Firstly there is the case law which argues that a licence on the basis of the external effect of Art. 12 Nature Conservancy Act need not be applied for unless there is obvious damage to essential features of the nature reserve.(85) Other judgments also reflect a restrictive approach of the licence requirement, for planned activities within the nature protection zone.(86) These judgments, too, express that in applying Art. 12 Nature Conservancy Act in the case of uncertainty concerning the expected harmfulness of an activity, the precautionary principle is not always applied as a matter of course. In any case it can be stated that neither the text nor the legislative history of Art. 12 Nature Conservancy Act even remotely discusses the precautionary principle or a corresponding rule to base a decision on. The result is that the Nature Conservancy Act does not offer a guarantee that the precautionary principle will or must be applied together with the relevant article.(87)

Incidentally, there are cases in which the precautionary principle is expressly laid down as a point of departure in non-mandatory policy and management plans concerning specific large nature protection areas. This is for example the case in section 2.3 of the 'Policy Document on the Wadden Sea' (a policy and management plan of the national government concerning this important wetland):(88)

'If, when weighing interests on the basis of the best available information, it has been established that obvious doubt exists about potentially serious negative consequences for the ecosystem, the preservation of the Wadden Sea will have the benefit of the doubt (the precautionary principle).'

In decisions concerning licences in the Wadden Sea area, this plan must be taken into account and is conclusive when final decisions are made.(89) The plan therefore has some, though not complete, mandatory power. In so far as the 'Policy Document on the Wadden Sea' applies to decisions under Art. 12 Nature Conservancy Act, the validity of the precautionary principle seems to be sufficiently guaranteed, at least in theory.

Generally speaking however, the Dutch Nature Conservancy Act seems to offer insufficient warranty that the precautionary principle will be applied in all decisions concerning licences for potentially harmful activities.

B. The influence of the habitat directive on Dutch wildlife law

In so far as sites which have been classified under the Habitat Directive and which form part of Natura 2000 must be protected on the basis of Dutch legislation, the Dutch Nature Conservancy Act should meet the requirements of this Habitat Directive under national legislation which serves to implement the European directive.(90) These requirements, as we have seen, include the precautionary principle. Under Art. 6 paragraph 3 Habitat Directive permission for projects with a potential impact on the protected habitats may not be granted unless these projects can be proved not to have any detrimental effect. When the exceptions set out in Art. 6 paragraph 4 Habitat Directive are invoked, a worst case scenario must be taken as a point of departure and all potential consequences must be justified on the basis of the criteria mentioned in Art. 6 paragraph 3 Habitat Directive.(91)

As has been stated above, the Dutch Nature Conservancy Act does not fully meet these requirements. The validity of the precautionary principle is not or inadequately guaranteed. In a situation in which a Member State of the EU does not meet its obligations to implement provisions of EU directives in national legislation, the relevant provision from the EU directive may be directly applied in the national legal system, provided that the substance of this provision makes it suitable for direct application.(92) This is the case in Art. 6 paragraphs 3 and 4 Habitat Directive.(93) In granting licences under Art. 12 of the Dutch Nature Conservancy Act, applications must therefore directly be tested against the criteria set out in Art. 6 paragraphs 3 and 4 Habitat Directive.(94) Thus a situation seems to have been achieved in which the precautionary principle must be complied with when the Dutch Nature Conservancy Act is applied. An activity can indeed be permitted only to the extent that there is either certainty that the natural features of the habitat will not be affected or that the conceivable damage can be defended on the basis of the restrictive criteria in Art. 6 paragraph 4. Currently the application of the precautionary principle in wildlife law seems to be safeguarded (at least theoretically) in cases relating to activities in areas protected under the Habitat Directive. In this way, European legislation fills the gaps in Dutch national wildlife law.(95)

V. THEORY AND PRACTICE:

TWO THINGS WITH LITTLE IN COMMON?

We have seen that the validity of the precautionary principle is sufficiently secured where national legislation is applied in areas which fall under the Habitat Directive. However, given the actual procedures in practice and as reflected in the jurisprudence, reality appears to be less positive than the theory. Up to now only one single recommendation has been issued at EU level in which Art. 6 Habitat Directive plays an explicit role.(96) It concerns the plan to build a motorway through extremely valuable nature conservation areas in former East Germany. Although in this case the precautionary principle essentially plays a very important role it is disturbing that the Commission so easily issues a positive recommendation about a plan that will radically interfere with a number of local priority habitat types.(97)

In the Dutch jurisprudence relating to the Nature Conservancy Act we could find no case containing a specific appeal to Art. 6 Habitat Directive or in which the Dutch judge decides to test against this provision. However, in a recent case art. 6 Habitat Directive was applied by the President of the District Court (Rechtbank) of Leeuwarden. In a procedure for temporary suspension of a former decision he decided that a licence for the exploration of gas near the Wadden Sea on the basis of the Mining Act was incompatible with both art. 6 Habitat Directive and the precautionary principle.(98) On the other hand there are a number of examples of appeals to the precautionary principle as formulated in the Policy Document on the Wadden Sea in decisions concerning licences for discharging waste water under the Pollution of Surface Waters Act. Usually the judge simply dismisses such an appeal by asserting that the precautionary principle is already incorporated in the relevant policy documents on discharging in surface waters.(99) Whether this does enough justice to the precautionary principle, however, remains doubtful.

We suspect that an important reason underlying the moderate interest for the precautionary principle, especially in national law and with national judges, lies in the fact that few are aware that the criteria of Art. 6 Habitat Directive must be taken into account in decisions involving activities in areas covered by this directive (including, incidentally, almost the entire Wadden Sea). Most Dutch jurists are even less familiar with what is laid down about the precautionary principle in international environmental law, and in particular in international wildlife law. Environmentalists and officials who make decisions in this field primarily think in terms of national impact and national law. It seems therefore necessary, also in order to bring Dutch wildlife law into agreement with the EU Habitat Directive, to amend Dutch legislation to explicitly include the criteria from Art. 6 paragraphs 3 and 4 Habitat Directive as a touchstone in granting licences.(100) Moreover, it could be considered whether the precautionary principle should to be given a more prominent place in Dutch environmental law. It is certainly something we would recommend. This could be achieved by inserting into the Dutch Nature Conservancy Act a formula which to a great extent corresponds to the statement in the policy and management plan for the Wadden Sea, quoted above.(101)

More in general we can conclude that the precautionary principle is an important principle of wildlife law that, although mainly developed in international environmental law, can play an important role in national wildlife law as well. Because the principle appears in international environmental law in many different forms with different meanings, it is important that national legislators start to implement the principle into national wildlife legislation. We hope this article is a first step in that process.

1. Prof. Chris Backes has studied law, political science and Dutch at the universities of Freiburg i.Br., Münster (Germany) and Nijmegen (the Netherlands). After working at the university of Münster he went to Utrecht University in 1988, where he has worked as lecturer. He became senior lecturer in environmental and planning law in 1993. He published his doctoral theses on European, Dutch and German nature conservation law (cum laude) in 1993. In 1995 he became a professor for European and international environmental law at Tilburg University (parttime) and in 1997 professor for Environmental Law at Utrecht University. He has published several books and about 50 articles about European and national environmental law and planning law. He is a.o. vice-president of the Dutch Environmental Law Association and was a member of the juridical commission of the Advisory Board for Nature Conservation. Dr. Jonathan Verschuuren received his PhD-degree in 1993 on a dissertation on the Constitutional right to environmental protection. He is currently working as a senior lecturer of administrative and environmental law at the Tilburg University (the Netherlands). Verschuuren is an active researcher in the field of environmental legislation for the Center for Legislative Affairs of the Schoordijk Institute of the Tilburg University. His research within the Institute mainly aims at fundamental questions concerning environmental legislation and comparative law. Especially for the Dutch Ministery of Environmental management many substantial projects on the development of new legal instruments have been conducted.

2. The Treaty of Rome establishing the European Community of 1957 has been amended in 1986 by the Single European Act, in 1992 by the Maastricht Treaty (31 ILM 247) and in 1997 by the Amsterdam Treaty and deals with the common policy of the member states on economic affairs and other subjects, including environmental measures. With the Maastricht Treaty of 7 February 1992 also the European Union (EU) was founded. The EU is based on the European Communities, which still continue to exist, supplemented by a common policy on the fields of a.o. foreign affairs and defence and a common currency. The EC-Treaty forms the basic constitutional law for the whole of the European Community and has direct legal effect in all of the Member States of the European Union. It can therefore be considered to be supranational law. The environmental policy is dealt with in title XVI of the EC-Treaty (Art. 130R - 130T EC-treaty). Updated texts can be found on the Europa Homepage, the abc of the European Union <http://europa.eu.int/abc/obj/treaties/eu/entoc.htm>. The amendments resulting from the Amsterdam Treaty can be found on the homepage of the Council of the European Union/General Secretariat <http://ue.eu.int/Amsterdam/en/treaty/treaty.htm> (both visited August 27, 1997).

3. The Rio Declaration on Environment and Development of 13 June 1992, Distr. Gen.A/Conf.151/5, also published in STANLEY P. JOHNSON, THE EARTH SUMMIT, London/Dordrecht/Boston 1993.

4. P.C. GILHUIS/J.M. VERSCHUUREN, THE CODIFICATION OF THE RIO PRINCIPLES IN NATIONAL ENVIRONMENTAL LAW, PUBLIKATIEREEKS MILIEUBEHEER, nr. 1996/1, The Hague, January 1996. This report contains an English summary of the full text report available in Dutch only: DE NEDERLANDSE MILIEUWETGEVING GETOETST AAN DE VERKLARING VAN RIO DE JANEIRO EN AGENDA 21, PUBLIKATIEREEKS MILIEUBEHEER, nr. 1995/2, The Hague, September 1995.

5. P.C. GILHUIS/J.M. VERSCHUUREN, THE CODIFICATION OF THE RIO PRINCIPLES IN NATIONAL ENVIRONMENTAL LAW, PUBLIKATIEREEKS MILIEUBEHEER, nr. 1996/1, The Hague, January 1996 , p. 10.

6. P.C. GILHUIS/J.M. VERSCHUUREN, THE CODIFICATION OF THE RIO PRINCIPLES IN NATIONAL ENVIRONMENTAL LAW, PUBLIKATIEREEKS MILIEUBEHEER, nr. 1996/1, The Hague, January 1996, p. 17.

7. We will deal with these differences in the next section. For now we will only roughly sketch the meaning of the principle.

8. This is a popular latin translation of the precautionary principle, often used by Dutch wildlife law specialists. It means that whenever there are doubts (on the consequences of a certain action on wildlife), the decision must always be in favor of the interests of the wildlife ecology.

9. The words 'nature conservation' are commonly used in Dutch legal and policy documents to indicate the entire policy and law with regard to the protection of flora and fauna and of areas which are of special ecological interest. 'Nature' must therefore be understood as broadly as possible: all elements of natural ecosystems and their relations.

10. The report for the Council has been published (in Dutch) in Ch.W. BACKES, P.C. GILHUIS, J.M. VERSCHUUREN (eds.), HET VOORZORGBEGINSEL IN HET NATUURBESCHERMINGSRECHT, Tjeenk Willink publishers, Deventer, 1997, p. 49-111.

11. Supra note 1.

12. Supra note 2.

13. Directives are legally binding regulations on specific subjects. They can be considerd as secondary European law (as opposed to primary European law that can be found in the EC Treaty). Member States have to implement these directives into their own national legislation, after which they are legally binding in the national jurisdiction. If a Member State fails to implement a directive, the directive may become legally binding in itself (i.e. without implementation into national law), J.H. JANS, EUROPEAN ENVIRONMENTAL LAW, the Hague, 1995.

14. EU Directive 92/43 on the conservation of natural habitats and of wild fauna and flora (Habitat Directive) of 21 May 1992, OFFICIAL JOURNAL L 206, p. 7ff.

15. Rio Declaration on Environment and Development of 13 June 1992, Distr. Gen.A/Conf.151/5, 31 ILM 874, also published in STANLEY P. JOHNSON, THE EARTH SUMMIT, London/Dordrecht/Boston 1993, p. 118 ff.

16. UN Framework Convention on Climate Change of 15 May 1992, Distr. Gen.A/AC.237/18 (part II)/Add. 1, 31 ILM 849, also published in STANLEY P. JOHNSON, THE EARTH SUMMIT, London/Dordrecht/Boston 1993, p. 59 ff.

17. Convention on Biological Diversity of 5 June 1992, 31 ILM 818also published in STANLEY P. JOHNSON, THE EARTH SUMMIT, London/Dordrecht/Boston 1993, p. 82 ff.

18. This happened with the amendments to the EC Treaty by the Maastricht Treaty (which took effect on 1 November 1993). Cf. supra note 1.

19. In such conventions as the Convention on the conservation of European wildlife and natural habitats (Berne, 19 September 1979), the Convention on the conservation of migratory species of wild animals (Bonn, 23 June 1979), the Agreement on the conservation of seals in the Wadden Sea (Bonn, 16 October 1990) and the Agreement on the conservation of Small Cetaceans of the Baltic and North Seas (New York, 17 September 1992), no reference to the precautionary principle has been made.

20. For the precautionary principle in international law generally see James Cameron/Juli Abouchar, The Status of the Precautionary Principle in International Law, in DAVID FREESTONE/ELLEN HEY (EDS.), THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW: THE CHALLENGE OF IMPLEMENTATION, The Hague 1996.

21. We deal with the EC Treaty separately because of its legally binding status. For the Member States of the EU, in a strict legal sense, the Treaty is more important than international (soft law) treaties such as the Rio Declaration, that cannot be enforced before national courts or the European Court of Justice.

22. For the precautionary principle in European policy and law generally see Andrea Williams/Jonathan Verschuuren, The implications of the precautionary principle in European environmental policy and law, in PARADIGMS, THE KENT JOURNAL OF INTERNATIONAL RELATIONS, Vol. 7, number 1, summer 1993, p. 31-42. And also: Leigh Häncher, EC Environmental policy a Pre-cautionary Tale?, in David Freestone/Ellen Hey (eds.), THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW, THE CHALLENGE OF IMPLEMENTATION, 1996, p. 187-207.

23. Supra note 1.

24. See for instance MCELDOWNEY/MCELDOWNEY, ENVIRONMENT AND THE LAW, Longman Ltd. 1996, p. 49.

25. See J.H. JANS, EUROPEAN ENVIRONMENTAL LAW, Kluwer Intl. Law, The Hague 1995, p. 20.

26. See for example the Council Decision of 24 July 1995 concerning the adoption on behalf of the Community of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 95/308/EC, OFFICIAL JOURNAL L 186, p. 42 and the Council Decision of 15 December 1994 adopting a specific programme of research and technological development in the field of environment and climate (1994-1998), 94/911/EC, OFFICIAL JOURNAL L 361.

27. COM(92) 23 def.

28. COM(92) 23 def., part II, p. 106.

29. Supra note 12.

30. Supra note 1.

31. Council Directive of 28 March 1983, OFFICIAL JOURNAL L 91/30.

32. The Council Directive of 28 March 1983, OFFICIAL JOURNAL L 91/30 states: "Whereas various studies have raised doubts concerning the population status of the harp and hooded seals and especially as to the effect of non-traditional hunting on the conservation and population status of hooded seals (...)." The Resolution giving rise to the Directive states: "Whereas there is scientific uncertainty over the population size of the hooded seal and the capacity of that species to withstand exploitation at current levels (...)", OFFICIAL JOURNAL C 14/1.

33. See for example the principle of pollution prevention in Directive 90/220/EEC (concerning the introduction of genetically modified organisms) and the "polluter pays" principle in Directive 91/157/EEC (involving batteries).

34. JAMES CAMERON/PAULA M. PEVATO/JULI ABOUCHAR, INTERNATIONAL IMPLEMENTATION OF THE PRINCIPLES, SUSTAINABILITY PRINCIPLES TO PRACTICE, Foundation for international environmental law and development, London, November 1994, p. 9.

35. However, a number of judgements from the European Court show that if the situation requires, it does refer to the principles laid down in Art. 130R, such as the principle that environmental pollution should be eliminated at source, cf. European Court of Justice 9 July 1992, Case C-2/90 and European Court of Justice 10 May 1995, Case C-422/92.

36. European Court of Justice 17 January 1991 (Case C-157/89) and 19 January 1994 (Case C-435/92).

37. European Court of Justice 19 January 1994, Case C-435/92, consideration 22.

38. Rio Declaration on Environment and Development of 13 June 1992, Distr. Gen.A/Conf.151/5, also published in STANLEY P. JOHNSON, THE EARTH SUMMIT, London/Dordrecht/Boston 1993, p. 118 ff.

39. GILHUIS/VERSCHUUREN, supra note 3, p. 47.

40. See also Ellen Hey, The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution, THE GEORGETOWN INTERNATIONAL ENVIRONMENTAL LAW REVIEW, Vol. 4, 1992, p. 310.

41. GILHUIS/VERSCHUUREN, supra note 3, p. 47.

42. GILHUIS/VERSCHUUREN, supra note 3, pp. 39-49.

43. The Environmental Management Act (EMA) of 13 June 1979 contains the main environmental legislation of the Netherlands, including regulations for industry, environmental impact assessment, environmental policy plans, environmental quality standards etc. The latest revised version dates of 6 February 1997 was published in the STAATSBLAD 1997, 63. An english translation of the Act is available at the Dutch Ministery of Housing, Spatial Planning and the Environment, Directorate General for Environmental Managemant, code 660, P.O. Box 30945, 2500 GX The Hague, the Netherlands.

44. UN Framework Convention on Climate Change of 15 May 1992, Distr. Gen.A/AC.237/18 (part II)/Add. 1, also published in STANLEY P. JOHNSON, THE EARTH SUMMIT, London/Dordrecht/Boston 1993, p. 59 ff.

45. David Freestone, The Precautionary Principle, in Robin Churchill/David Freestone (eds.), INTERNATIONAL LAW AND GLOBAL CLIMATE CHANGE, 1991, p. 21-39.

46. Convention on Biological Diversity of 5 June 1992, also published in STANLEY P. JOHNSON, THE EARTH SUMMIT, London/Dordrecht/Boston 1993, p. 82 ff.

47. Catherine Tinker, State Responsibility and the Precautionary Principle, in David Freestone/Ellen Hey (eds.), THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW, THE CHALLENGE OF IMPLEMENTATION, 1996 , p. 56.

48. More elaborate on this subject: Edward Christie, The Eternal Triangle: The Biodiversity Convention, Endangered Species Legislation and the Precautionary Principle, in ENVIRONMENTAL AND PLANNING LAW JOURNAL, December 1993, p. 470-485.

49. This overview does not pretend to be exhaustive. The emphasis is on the treaties which have proved to be reasonably enforceable rather than on ministerial declarations. We have, however, tried to present all modalities of the precautionary principle.

50. Helsinki, 17 March 1992, 31 ILM 1312.

51. Esbjerg, 13 November 1991. Document available at the Common Wadden Sea Secretariat, Virchowstraße 1, D-26382 Wilhelmshaven, Germany.

52. OSPAR Convention, Paris, 22 September 1992, (1993) 32 ILM 1069.

53. Helsinki, 9 April 1992, 3 YIEL, doc. 1 (on disc).

54. Protocol of 31 October 1988 to the Geneva Convention of 13 November 1979, 18 ILM 1442.

55. The preamble to the Protocol of Oslo (14 June 1994) to the same treaty, 33 ILM 1540, however, does mention the precautionary principle. Here the influence of the Rio Declaration can be sensed: 'Convinced that where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that such precautionary measures dealing with emissions of air pollutants should be cost-effective.'

56. A revised version can be found at the Greenpeace pages <http://www.greenpeace.org/~intlaw/mont-htm.html>.

57. Copenhagen, 1994, document available at the Common Wadden Sea Secretariat, Virchowstraße 1, D-26382 Wilhelmshaven, Germany.

58. Supra, note 56.

59. Theoretically principles can be seen to differ from rules, as Dworkin has shown, R.M. Dworkin, Is law a system of rules?, reprinted in THE PHILOSOPHY OF LAW (R.M. Dworkin ed., 1977), Oxford University Press, p. 43. 'Rules are applicable in an all-or-nothing fashion' (Dworkin, p. 45), while a principle 'states a reason that argues in one direction, but does not necessitate a particular decision' (Dworkin, p. 47). This theoretic difference can in practice be rather vague (cf. Dworkin, p. 48), especially when a principle has been formulated in a "rules-like" fashion. Such is the case here. See on the subject also J.M. Verschuuren, Naar een codificatie van beginselen van het milieurecht (towards codification of principles of environmental law), in DE NATUUR VAN HET MILIEURECHT (Serge Gutwirth & Gerrit van Maanen eds.), Ars Aequi Libri, Nijmegen 1995, p. 103-106.

60. It was already concluded earlier that the precautionary principle is emerging as a rule of customary international law, James Cameron/Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW, Vol. XIV, No. 1, p. 20. This idea however is not generally accepted yet as has been shown by James Cameron/Juli Abouchar, The Status of the Precautionary Principle in International Law, in David Freestone/Ellen Hey (eds.), THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW, THE CHALLENGE OF IMPLEMENTATION, 1996, p. 36 ff.

61. Cf. supra note 1.

62. See H. Soell, Überlegungen zum europäischen Umweltrecht, NATUR UND RECHT 1990, p. 155 ff.and J.H. JANS, EUROPEAN ENVIRONMENTAL LAW, The Hague, p. 354.

63. See H. Soell, Überlegungen zum europäischen Umweltrecht, NATUR UND RECHT 1990, p. 155 ff.; Ch.W. Backes, Europese gemeenschap en natuurbescherming, MILIEU EN RECHT 1995, p. 90-95; D. BADER/H. MAY, EG UND NATURSCHUTZ, Economica-Verlag Bonn 1992; C. Stuffmann, The role of the European Union, in G. BENNET (ed.), CONSERVING EUROPE'S NATURAL HERITAGE, London/Dordrecht/Boston, 1994, p. 75 ff.

64. See Ch.W. Backes, Europese gemeenschap en natuurbescherming, MILIEU EN RECHT 1995, p. 90 ff.

65. For an overview see Ch.W. Backes, Europese gemeenschap en natuurbescherming, MILIEU EN RECHT 1995, p. 90 ff.

66. On this network see for example: INSTITUTE FOR EUROPEAN ENVIRONMENTAL POLICY, TOWARDS A EUROPEAN ECOLOGICAL NETWORK, Arnhem 1991.

67. OFFICIAL JOURNAL L 206, p. 7ff.

68. The 10th overweging of the Habitat Directive goes at follows: 'Whereas, in order to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status, it is necessary to designate special areas of conservation in order to create a coherent European ecological network according to a specified timetable.'

69. The aspects of the Habitat Directive which bear on the relation to the regulation concerning the environmental impact assessment and the compensatory measures formulated in Art. 6 paragraph 4 Habitat Directive will not be discussed here. They are dealt with by J.H. JANS, EUROPEAN ENVIRONMENTAL LAW, the Hague 1995, p. 363.

70. Art. 6 Habitat Directive reads:

'1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member States shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.'

For further on Art. 6 of the directive cf. W. Erbguth/F. Stollmann, Die Bindung der Verwaltung an die FFH-Richtlinie, DEUTSCHES VERWALTUNGSBLATT 1997, p. 453; A. Nollkaemper, Kanttekeningen bij artikel 6 (4) van de Habitat Richtlijn, MILIEU EN RECHT 1996, p. 156 ff; J.H. Jans, De toekomstige Natuurbeschermingswet en het Nederlandse recht, in: W. BRUSSAARD/J.H. JANS, NAAR EEN NIEUWE NATUURBESCHERMINGSWET, Zwolle 1994, p. 26 ff and Ch.W. Backes, Implementatie van de Habitatrichtlijn in het Nederlandse (natuur)beschermingsrecht, MILIEU EN RECHT 1996, p. 216-218.

71. Supra, note 69.

72. See CH.W. BACKES, P.C. GILHUIS, J.M. VERSCHUUREN (eds.), supra note 9, p. 104.

73. Very recently, the President of the District Court (Rechtbank) of Leeuwarden ruled in the same way in a decision about a licence for the exploration of gas in the North Sea coastal zone, near the Wadden Sea (Pres. Rb Leeuwarden 28 April 1997, to be published in the Dutch journal MILIEU EN RECHT 1997/10).

74. See about the effects of EC-Directives on national law S. PRECHAL, DIRECTIVES IN EUROPEAN COMMUNITY LAW, Oxford University Press 1994, p. 119 ff. See also supra note 12.

75. In concrete cases EC Directives only may be applied directly, if the requirements of the Directive are not properly implemented in the law of the national state.

76. Nature Conservancy Act of 15 november 1967, STAATSBLAD 1967, nr. 572. At the moment this Act is going to be revised. It is expected that Parliament will decide on the draft of the new Nature Conservancy Act in the autumn of this year (1997).

77. Art. 12 Nature Conservancy Act reads:

'1. It is forbidden to perform actions, have actions performed or allow actions that are harmful to the natural beauty or the particular scientific importance of a protected nature reserve or that spoil its character without being authorized by the Minister or contrary to the conditions specified in a licence.

2. Actions considered harmful to the natural beauty or the particular scientific importance of a protected nature reserve are in any case actions affecting the essential characteristics of a protected nature reserve specified in the order of designation.

3. Actions provided for in a management plan as referred to in Article 14 shall not require a licence.'

78. See for example the two Royal Decrees of 3 February 1983, AB 1983, 279 with annotation by CLR; Royal Decree of 26 May 1978, AB 1979, 70; Administrative Disputes Section of the Council of State 11 September 1989, MILIEU EN RECHT 1990, p. 188ff; Royal Decree 6 December 1993, MILIEU EN RECHT 1993, 257; Administrative Disputes Section of the Council of State 17 December 1993; President of the District Court of Den Bosch 11 July 1995, MILIEU EN RECHT 1995, p. 206; See also the explanatory memorandum to the revised Nature Conservancy Act, PARLIAMENTARY PAPERS II 1993-1994, 23 580, nr. 3, p. 32.

79. See e.g. K. VAN DER ZWIEP/CH.W. BACKES, INTEGRATED SYSTEM FOR CONSERVATION OF MARINE ENVIRONMENT, Baden Baden 1994, p. 21 ff.

80. In the Comment on the classification as nature protection area "Wadden Sea II" of 17 November 1993, namely the comment which replaces the original comment on the previous classifications, this passage has been eliminated and it states that activities "which can be considered harmful" also require a licence.

81. President of the Judicial Division of the Council of State 14 January 1993, MILIEU EN RECHT 1994, 129 with critical annotation by Bakker.

82. CH.W. BACKES, P.C. GILHUIS, J.M. VERSCHUUREN (eds.), supra note 9, p. 91.

83. Administrative Disputes Section of the Council of State 11 September 1989, MILIEU EN RECHT 1990, p. 118ff; and (same section) 6 December 1993, MILIEU EN RECHT 1994, p. 257 with annotation by Bakker.

84. Supra, note 80.

85. Administrative Disputes Section of the Council of State 6 July 1992, MILIEU EN RECHT 1994, p. 255 with annotation by Bakker.

86. See e.g. Administrative Disputes Section of the Council of State 3 July 1992, MILIEU EN RECHT 1992, p. 427.

87. CH.W. BACKES, P.C. GILHUIS, J.M. VERSCHUUREN (eds.), supra note 9, p. 92.

88. MINISTER FOR HOUSING, SPATIAL PLANNING AND ENVIRONMENTAL MANAGEMENT, NOTA WADDENZEE, The Hague 1993, p. 6.

89. A case in point is the above-mentioned decision of the President of the District Court of Leeuwarden (supra note 72) about a licence for the exploration of gas in the North Sea coastal zone near the Wadden Sea. This decision, given in a procedure for a temporary suspension of a former decision, however, did not concern the Nature Conservancy Act, but the Mining Act , decision of 28 April 1997, to be published in MILIEU EN RECHT 1997/10.

90. In a letter to the European Commission of 20 june 1994, (nr. M 26) the Dutch government declared, that the Nature Conservancy Act contains the main instrument to fulfill the obligations of the Directive. The question then arises if the Nature Conservancy Act indeed meets the rquirements of the directive. See also J.H. Jans, De toekomstige Natuurbeschermingswet en het Nederlandse recht, supra note 69, p. 28 ff.

91. See above, chapter III C.

92. See S. PRECHAL, supra note 73, p. 246 ff.

93. In the above mentioned case (supra note 72), the President of the District Court of Leeuwarden, too ruled that art. 6 Habitat directive contains provisions, which are concrete enough to be apllicated directly in national law.

94. See Ch.W. Backes, Implementatie van de Habitatrichtlijn in het Nederlandse (natuur)beschermingsrecht, MILIEU EN RECHT 1996, p. 219 ff.

95. CH.W. BACKES, P.C. GILHUIS, J.M. VERSCHUUREN (eds.), supra note 9, p. 107.

96. See about this case A. Nollkaemper, supra note 69.

97. Opinion of 27 April 1995, OFFICIAL JOURNAL 1995, C 178, p. 3ff.

98. President of the District Court of Leeuwarden 28 April 1997, to be published in MILIEU EN RECHT 1997/10.

99. President of the Judicial Division of the Council of State 19 March 1996, MILIEU EN RECHT 1996, nr. 129 with annotation by Verschuuren; Judicial Division of the Council of State 18 August 1995, No. G05.93.2669 (unpublished).

100. CH.W. BACKES, JURIDISCHE BESCHERMING VAN ECOLOGISCH WAARDEVOLLE GEBIEDEN, Zwolle 1993, p. 321.

101. See chapter IV A.