<p>This thesis aims at providing reasonable explications of theprecautionary principle and the concept of precaution, todefend the precautionary principle against some commoncriticisms, and to give an indication of how the precautionaryprinciple might be operationalised.</p><p>In Essay I, the concept of precaution is analysed in termsof precautionary actions. Distinctions between precaution andtwo related concepts, prevention and pessimism, are discussed.A definition involving three necessary and jointly sufficientconditions is proposed as a reasonable explication of aprecautionary action.</p><p>Essay II attempts to provide an analytical apparatus whichmay be used for finding an authoritative formulation of theprecautionary principle. Several formulations of theprecautionary principle are examined. It is argued that theprecautionary principle can be recast into a four-dimensionalif-clause, and that this format can be used in negotiationsconcerning the precautionary principle.</p><p>In Essay III, the precautionary principle is defendedagainst five common charges, namely that it is ill-defined,absolutist, and a value judgement, increases risk-taking, andmarginalises science.</p><p>In Essay IV, a simple formalised model is introduced, inwhich the precautionary principle is interpreted in terms ofdefault values of chemicals regulation.</p><p><b>Key words:</b>Precautionary principle, precaution, risk</p>

Thesis (doctoral)--Universitas Tartuensis, 2004. / Includes bibliographical references (p. 262-287).

This thesis aims at providing reasonable explications of theprecautionary principle and the concept of precaution, todefend the precautionary principle against some commoncriticisms, and to give an indication of how the precautionaryprinciple might be operationalised. In Essay I, the concept of precaution is analysed in termsof precautionary actions. Distinctions between precaution andtwo related concepts, prevention and pessimism, are discussed.A definition involving three necessary and jointly sufficientconditions is proposed as a reasonable explication of aprecautionary action. Essay II attempts to provide an analytical apparatus whichmay be used for finding an authoritative formulation of theprecautionary principle. Several formulations of theprecautionary principle are examined. It is argued that theprecautionary principle can be recast into a four-dimensionalif-clause, and that this format can be used in negotiationsconcerning the precautionary principle. In Essay III, the precautionary principle is defendedagainst five common charges, namely that it is ill-defined,absolutist, and a value judgement, increases risk-taking, andmarginalises science. In Essay IV, a simple formalised model is introduced, inwhich the precautionary principle is interpreted in terms ofdefault values of chemicals regulation. <b>Key words:</b>Precautionary principle, precaution, risk / NR 20140805

As variantes evolutivas da sociedade, especialmente a pós-moderna, com sua inerente complexidade e riscos, provocam a releitura das funções e estrutura da responsabilidade civil. À referida figura jurídica tanto pela observação ontológica (ser) como deontológica (dever-ser) cumpre tantos modelos quanto forem necessários à revitalização da vítima e avançando além do escopo reparatório à inerente preservação da pessoa humana considerada em suas dimensões individual e coletiva, em órbita de intangibilidade essencial (segurança), pois há danos de intensidade irreparável. O escopo da presente tese é justamente investigar a fragmentação da responsabilidade civil conforme as vicissitudes contemporâneas, imprimindo, para além do silogismo dedutivo-estruturalista, telos argumentativo-funcional, mediante as operações hermenêuticas possíveis proporcionadas pelos Princípios da Precaução e Prevenção, o que permite anunciar o modelo de Responsabilidade Civil Preventiva / The constant evolution of society, especially the postmodern, with its inherent complexity and risk, promotes a new reading of functions and structure of liability. To this legal figure, both by ontological as deontological observation, meets any models as necessary for the revitalization of the victim and - moving beyond the scope of reparation the inherent preservation of the essential intangibility (safety) of the human beings, considered in their individual and collective dimensions, because there are intense and irreparable damages. The scope of this thesis is precisely to investigate the civil liability fragmentation under the contemporary dynamic social changes, bringing, beyond the reasoning deductivestructuralist, meaning argumentative-functional, through the hermeneutical provided by the Precautionary Principle and Prevention, which allows to announce the Preventive Liability model .

As variantes evolutivas da sociedade, especialmente a pós-moderna, com sua inerente complexidade e riscos, provocam a releitura das funções e estrutura da responsabilidade civil. À referida figura jurídica tanto pela observação ontológica (ser) como deontológica (dever-ser) cumpre tantos modelos quanto forem necessários à revitalização da vítima e avançando além do escopo reparatório à inerente preservação da pessoa humana considerada em suas dimensões individual e coletiva, em órbita de intangibilidade essencial (segurança), pois há danos de intensidade irreparável. O escopo da presente tese é justamente investigar a fragmentação da responsabilidade civil conforme as vicissitudes contemporâneas, imprimindo, para além do silogismo dedutivo-estruturalista, telos argumentativo-funcional, mediante as operações hermenêuticas possíveis proporcionadas pelos Princípios da Precaução e Prevenção, o que permite anunciar o modelo de Responsabilidade Civil Preventiva / The constant evolution of society, especially the postmodern, with its inherent complexity and risk, promotes a new reading of functions and structure of liability. To this legal figure, both by ontological as deontological observation, meets any models as necessary for the revitalization of the victim and - moving beyond the scope of reparation the inherent preservation of the essential intangibility (safety) of the human beings, considered in their individual and collective dimensions, because there are intense and irreparable damages. The scope of this thesis is precisely to investigate the civil liability fragmentation under the contemporary dynamic social changes, bringing, beyond the reasoning deductivestructuralist, meaning argumentative-functional, through the hermeneutical provided by the Precautionary Principle and Prevention, which allows to announce the Preventive Liability model .

No

Les textes du Code civil relatifs à la responsabilité délictuelle ont peu évolué depuis 1804. En dépit de la cristallisation de la loi, cette matière a constitué un laboratoire privilégié de création jurisprudentielle. La Cour de cassation a, en effet, œuvré dans le sens de l’adaptation de la responsabilité civile à l’évolution des besoins de la société. La responsabilité du fait des choses inanimées ou encore les dommages causés par les accidents de la circulation sont autant de constructions prétoriennes audacieuses.Ce travail de recherche a pour objet d’analyser la capacité créative prétorienne par rapport aux nouveaux besoins sociaux qu’est l’évitement de certains dommages. En sus de la nécessaire indemnisation, l’évitement de certains dommages est devenu un enjeu majeur, particulièrement dans les domaines de la santé publique et environnemental. C’est alors que le juge, dans le silence de la loi mais avec l’aide précieuse des progrès scientifiques, au lieu d’évaluer les dommages, se livre à une analyse du risque hypothétique; au lieu d’indemniser les dommages, met tout en œuvre pour les éviter.Dans cette perspective, ce travail de recherche a pour ambition de proposer l’intégration d’une action de précaution en droit français. Cette action présenterait l’incommensurable avantage de doter les citoyens d’un outil juridique nécessaire pour éviter la réalisation des dommages litigieux aux conséquences graves et irréversibles. Le risque serait alors érigé au rang des conditions de la responsabilité civile et les mesures pour éviter le dommage constitueraient, quant à elles, les effets de la responsabilité. De sorte que coexisteraient, au sein de la matière, la fonction traditionnelle indemnitaire et la fonction nouvelle d’évitement des dommages. / The texts of the Civil Code relating to tort have changed little since 1804. Despite the crystallization of the law, this matter was a privileged laboratory of judicial creation. The Supreme Court has in fact worked on the adaptation of civil liability to changing societal needs. Liability of inanimate things or damage caused by traffic accidents are all bold Praetorian constructions.This research aims to analyze the Praetorian creative capacity compared to new social needs that are the avoidance of certain damages. In addition to the necessary compensation, avoidance of certain damages has become a major issue, especially in the areas of public and environmental health. It was then that the judge , in the silence of the law but with the precious help of scientific progress, instead of assessing the damage, engaging in a hypothetical risk analysis; instead of paying damages, does everything possible to avoid them.From this perspective, this research aims to propose the inclusion of precautionary action in French law. This action would have the immeasurable advantage of providing citizens with the legal tools needed to prevent the realization of the disputed damage to serious and irreversible consequences. The risk would be elevated to that of the conditions of civil liability and measures to avoid damage would, in turn, impact on liability. So that both coexist in the matter, the traditional compensatory function and the new avoidance function damage.

1 Resumé Preliminary Ruling In some situations, it is not possible to wait for the court judgement in the case itself. Then there is the need for providing the legal protection of these rights before the meritorious judgement, for otherwise there would be a risk that the judgement in the case itself would have no real consequence or it would be impossible to execute. For this reason the institute of precautionary measures was established. This institute is an extraordinary instrument of temporary law protection, which should be naturally followed by the proceeding in the case itself. However, a proceeding in case of precautionary measures is basically an independent proceeding, and its result does not prejudge the court judgement in the case itself. In order to fulfil the objective of a precautionary measure, its proceeding must follow certain specifications. These variations are the subject of this thesis, which tries to present various perspectives on these proceedings specifications. Those are mainly jurisdiction without hearing of the parties, different regulations in delivery, judgement reasoning, simple verification of some facts, and establishment of caution. This regulation of proceedings was many times the subject of analysis of compliance with the constitutional order, especially with the right to...

While the basic premise of precaution has been widely endorsed in environmental treaties since its inclusion in the Rio Declaration on Environment and Development, as a legal principle, it has been framed in such vastly dissimilar ways that it continues to generate significant disagreement over its precise nature, standing and legal effect. Despite the rich and extensive scholarship aimed at clarifying its normative content and operation, the ongoing lack of consensus on when the precautionary principle is applicable and what its application entails points to fundamental definitional challenges as well as its overall limitations as a regulatory tool. This thesis attempts to move beyond this impasse by reassessing the precautionary principle in light of the distinction traditionally made in formal scientific discourse between risk and uncertainty. While this technical distinction is fundamental to defining the proper scope of the principle’s application, the thesis finds that much of the existing legal discourse has either overlooked or marginalised the risk/uncertainty dichotomy, which in turn has blurred the distinction between the principles of precaution and prevention. The thesis sets out what is meant by these analytically distinct concepts in the legal context, focusing on their implications for the processes of legal reasoning and regulatory decision-making. Having examined the conceptual underpinnings of the precautionary principle, and of the principle of prevention, the thesis proceeds to address a central research question – if uncertainty, as opposed to risk, determines the operational scope of the precautionary principle, to what extent do the current applications of the precautionary principle actually fall within its proper domain? To answer this, the thesis embarks on a deconstruction of the precautionary principle in practice by analysing how precaution has been deployed as an operational principle in particular treaty contexts. The treaty regimes examined here include: international fisheries; persistent organic pollutants; ocean dumping; sanitary and phytosanitary threats under the WTO; and atmospheric pollution and climate change. In each case, the thesis scrutinises the extent to which assumptions, obligations and measures contained therein are consistent with the theoretical underpinnings of precaution. Despite the pervasive use of the precautionary rhetoric in treaty texts and practice, the thesis ultimately finds that, for the most part, these instruments are in fact aimed at specific, scientifically-determined risks, and thus what is often upheld in the name of precaution is actually the prevention principle. The thesis argues that it is better to frame risk regulation through prevention, and not precaution, by considering the implications of abandoning the precautionary principle in those areas where the prevention principle is clearly at play. The thesis completes the analysis by addressing what is actually left for the precautionary principle and discussing some of the distinct ways in which precaution functions within its specific, circumscribed domain.

Abstract: Pharmaceuticals and their metabolites, collectively known as pharmaceutically active compounds (PhACs), have been detected in surface water, groundwater, and drinking water, in a number of countries, since the mid-1990s. Pharmaceuticals can be used in human or veterinary medicine; human pharmaceuticals in the environment are the subject of this dissertation. Human pharmaceuticals enter the environment via wastewater treatment plants, after being consumed and excreted by humans, and through improper disposal, to toilets and garbage, among other routes of entry. Some PhACs have been found to have detrimental effects on aquatic organisms at low concentrations, such as the feminization of fish after exposure to low levels of 17-ethinylestradiol, the active ingredient in the birth control pill. Others are suspected of having effects on non-target species, but the impacts of long-term exposure to mixtures of PhACs generally remain poorly understood. Nevertheless, the precautionary principle suggests that management action to mitigate the environmental impacts of PhACs should be considered and possibly implemented. The purpose of this dissertation is to provide an analysis of precautionary management strategies to mitigate the environment impacts of human PhACs. Four underlying objectives are set. The first is to review the extant scientific understanding of human PhACs in the environment, so that this knowledge can be applied to the analysis of management strategies. The sources, transport, fate, and occurrence of PhACs are discussed, and several classes of PhACs of particular concern are highlighted. The effects of PhACs on humans and aquatic organisms are explored, in addition to the gaps in scientific understanding of PhACs in aquatic environments. Finally, a rough ranking of priority PhACs is conducted; the PhACs of greatest concern are found to be carbamazepine, clofibric acid, ifosfamid, 17a-ethinylestradiol, oxytetracycline, ciprofloxacin, and diclofenac. The second objective is to investigate how planning and management principles and theories can be applied to the problem of PhACs in the environment. The precautionary principle and the theory of adaptive planning are identified as essential tools in this regard. The application of the precautionary principle and adaptive planning to pharmaceuticals in the environment are discussed, and a management framework is developed. The third objective is to determine how human PhACs in the environment can be managed at a local scale, using a case study in the Region of Waterloo. Pharmaceuticals released from two wastewater treatment plans are found entering the local environment at concentrations similar to those in other cities internationally. Social surveys indicate that residents desire management action to prevent environmental contamination by pharmaceuticals, but at a limited cost. The surveys also indicate that many residents dispose of pharmaceuticals improperly; education to encourage proper drug disposal is therefore recommended as one of several management strategies. The other two recommended management strategies target the wastewater treatment plants. In Foxboro, where the wastewater treatment plant is functioning less than optimally, optimization without technological upgrades is suggested. In Kitchener, where the plant is functioning within ministerial guidelines, ozonation is suggested as a means of improving pharmaceutical removal without exceeding residents’ willingness to pay. The fourth and final objective is to assess how human pharmaceuticals can be managed at a broad scale, such as at the national scale. Stakeholder interviews are conducted with the purpose of gaining a deeper understanding of possible management strategies. A policy analysis is conducted to determine which combinations of management strategies are likely to optimally address the problem of PhACs in the environment, and some policy packages are recommended for implementation by governments – in particular, multiple levels of government in Canada. This dissertation is among the first research efforts to investigate the management of pharmaceuticals in the environment. Few efforts to date have combined natural scientific research, social scientific research, and an understanding of planning and management theories, to explore policy and management options for this issue. It is hoped that this research will provide assistance to various governments grappling with pharmaceuticals in the environment. Furthermore, the research provides insight into how environmental problems surrounded by high levels of scientific uncertainty can be managed. The framework for precautionary decision making developed in this study can provide guidance to planners, managers and policy makers faced with the problem of uncertain environmental risk.