The TTIP debate (a free trade agreement between the US and the EU) is more fiery than ever. The agreement is highly criticised because of the cloud of “secrecy” surrounding the negotiations, since almost no one is aware of its details – in what has been considered a violation of the Transparency Rules by which EU institutions must abide. Greenpeace has had access to documents detailing the terms of the TTIP and leaked them for public perusal; however, in doing so, the organisation made a grave accusation: the agreement marks the “end of the precautionary principle” - but is it true?
What is the Precautionary Principle?
The Precautionary Principle, in the Article 191 of the EU Treaty, “enables rapid response in the face of a possible danger to human, animal or plant health, or to protect the environment. In particular, where scientific data do not permit a complete evaluation of the risk, recourse to this principle may, for example, be used to stop distribution or order withdrawal from the market of products likely to be hazardous.” (source)
The WTO (World Trade Organisation) also states “Member countries are encouraged to use international standards, guidelines and recommendations where they exist. When they do, they are unlikely to be challenged legally in a WTO dispute. However, members may use measures which result in higher standards if there is scientific justification. They can also set higher standards based on appropriate assessment of risks so long as the approach is consistent, not arbitrary. And they can to some extent apply the 'precautionary principle', a kind of 'safety first' approach to deal with scientific uncertainty. Article 5.7 of the SPS Agreement allows temporary 'precautionary' measures.” (source)
Around the time this piece was written, in its site, the organisation said “The precautionary principle, enshrined in the EU Treaty, is not mentioned in the chapter on Regulatory Cooperation, nor in any other of the obtained 12 chapters.” (source)
We are now going to take a quick look at three chapters that affect public health and interest more directly - Agriculture and Sanitary and Phytosanitary Measures (dealing with the protection of plants and and animal health) and at the Regulatory Cooperation Chapter – to verify if indeed the TTIP intends to mark the end of the Precautionary Principle. The following information was retrieved from this source.
3. [EU: The Parties recognize that their respective societal choices may differ with respect to public policy decisions affecting agriculture. In this regard, nothing in this Agreement will restrain the Parties from taking measures necessary to achieve legitimate policy objectives such as the protection of public health, safety, environment or public morals, social or consumer protection, or the promotion and protection of cultural diversity that each side deems appropriate. Both Parties will seek to ensure that the effect of such measures does not create unnecessary obstacles to trade in agricultural goods between them and that the measures are not more trade-restrictive than necessary to fulfill their legitimate objective.]
It is only a matter of interpreting the text: though it does not mention “Precautionary Principle” per se it is clear the chapter does raise concerns about public health and safety and therefore (the EU for example) ensures its ability to act whenever these are in danger – is this not a mention of the principle, in many words?
Regulatory Cooperation Chapter
The general objectives of this Chapter are:
(a) To reinforce regulatory cooperation thereby facilitating trade and investment in a way that supports the Parties' efforts to stimulate growth and jobs, while pursuing a high level of protection of, inter alia, the environment, consumers, working conditions, human, animal and plant life; health and safety, personal data, cybersecurity, cultural diversity, or preserving financial stability;
2. The provisions of this Chapter do not restrict the right of each Party to maintain, adopt and apply measures to achieve legitimate public policy objectives, such as those mentioned in paragraph 1, at the level of protection that it considers appropriate, in accordance with its regulatory framework and principles.
The EU chooses a high level of protection that often clashes with the international standards of safety, but nevertheless the Union reserves the right to place the protection of its citizens first and international instruments confer it that same right.
Sanitary and Phytosanitary Measures Chapter
[Note: Consistent with the recommendations of the US-EU High Level Working Group Report on Jobs and Growth, the Parties seek to establish an “SPS-plus” chapter that builds upon the key principles of the World Trade Organization (WTO) SPS agreement, including with respect to science, while preserving each Party's ability to achieving its appropriate level of protection as it relates to human, animal or plant life or health.]
The note repeats the same idea and reminds the other party that the WTO also supports its precautionary principle; making thus the US encouraged to respect the European standards of safety.
Note: additional provisions aimed at improving the use of science in SPS decision-making to be considered.
This is in line with the description of the Precautionary Principle: "In particular, where scientific data do not permit a complete evaluation of the risk, recourse to this principle may, for example, be used to stop distribution or order withdrawal from the market of products likely to be hazardous." (EU Treaty) and "members may use measures which result in higher standards if there is scientific justification" (WTO) – all to make sure that science supports the safety and health of humans and animals; in case of doubt the Principle is automatically triggered .
1. In undertaking a risk assessment appropriate to the circumstances, each Party shall ensure that it takes into account:
(a) relevant available scientific evidence, including quantitative or qualitative data and information; and
(b) relevant guidance from the WTO SOS Committee and international standards, guidelines, and recommendations concerning the risk at issue
Is this not part of the Precautionary Principle? It is (as the European Commission has explained in a Communication about the Principle).
Even though it is true that the Principle is not directly mentioned it is, however, identified in full. There is a purpose for this: to give margin for negotiation, not to close doors before reaching a consensus. Nevertheless, it is obvious that the concern for public and animal health, safety, consumer rights, the environment etc is present in the analysed chapters, therefore, we must question Greenpeace's peremptory statement that the Precautionary Principle is not mentioned “in the chapter on Regulatory Cooperation, nor in any other of the obtained 12 chapters” when it is present not only in the Regulatory Cooperation chapter but also in at least two others - is the organisation poorly staffed (i.e. without any ability to interpret texts) or is it funded by interest groups?
Either way, Greenpeace may have just discredited itself with this specific unfounded “J'accuse”.
(Image: Edited version - euintheus.org)
[The views expressed in this publication are solely those of the author(s) and do not necessarily reflect the views of Dissecting Society]