Caroline Foster. Science and the Precautionary Principle in International Courts and Tribunals. Expert Evidence, Burden of Proof and Finality

Abstract Key messagesRisk assessment for children has been a polarising issue during the Covid-19 pandemic. Governments around the world are preparing to ‘open up’ before risks to children are fully quantified, with unknown implications for their long-term health.Applying the Precautionary Principle to child health requires decision makers to 1) take preventive action until risks are better understood; 2) ensure that the burden of proof rests with proponents of risk; 3) explore alternatives to the risk; and 4) use participatory approaches to decision-making.Policies relating to children must be centred on the rights and wellbeing of children. We provide a framework for comprehensive Health Impact Assessments to ensure that direct and indirect impacts upon children are taken into account in major policy decisions.Elimination strategies offer an integrated approach to the protection of children’s wellbeing, the wellbeing of the population as a whole, and health equity. Where countries are transitioning away from elimination, a tight suppression approach is preferable to loose suppression or mitigation.

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Reconciling civil liberties and public health in the response to COVID-19

FACETS ◽

10.1139/facets-2020-0070 ◽

2020 ◽

Vol 5 (1) ◽

pp. 887-898

Author(s):

Colleen M. Flood ◽

Vanessa MacDonnell ◽

Bryan Thomas ◽

Kumanan Wilson

Keyword(s):

Public Health ◽

Civil Rights ◽

Precautionary Principle ◽

Civil Liberties ◽

Burden Of Proof ◽

Political Rights ◽

The Precautionary Principle ◽

Response Strategies ◽

The Right ◽

Health Discourse

The COVID-19 pandemic has highlighted the challenges governments face in balancing civil liberties against the exigencies of public health amid the chaos of a public health emergency. Current and emerging pandemic response strategies may engage diverse rights grounded in civil liberties, including mobility rights, freedom of assembly, freedom of religion, and the right to liberty and security of the person. As traditionally conceived, the discourses of civil rights and public health rest on opposite assumptions about the burden of proof. In the discourse of civil and political rights of the sort guaranteed under the Canadian Charter of Rights and Freedoms, the onus rests on government to show that any limitation on rights is justified. By contrast, public health discourse centers on the precautionary principle, which holds that intrusive measures may be taken—lockdowns, for example—even in the absence of complete evidence of the benefits of the intervention or of the nature of the risk. In this article, we argue that the two principles are not so oppositional in practice. In testing for proportionality, courts recognize the need to defer to governments on complex policy matters, especially where the interests of vulnerable populations are at stake. For their part, public health experts have incorporated ideas of proportionality in their evolving understanding of the precautionary principle. Synthesizing these perspectives, we emphasize the importance of policy agility in the COVID-19 response, ensuring that measures taken are continually supported by the best evidence and continually recalibrated to avoid unnecessary interference with civil liberties.

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

SSRN Electronic Journal ◽

10.2139/ssrn.2101613 ◽

2012 ◽

Author(s):

Mehmet Suat KAYIKÇI

Keyword(s):

Precautionary Principle ◽

Burden Of Proof ◽

The Precautionary Principle

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The precautionary principle and the burden and standard of proof in European and Dutch environmental law

Review of European Administrative Law ◽

10.7590/187479820x15930701852274 ◽

2020 ◽

Vol 13 (2) ◽

pp. 113-131

Author(s):

Rogier Kegge

Keyword(s):

Precautionary Principle ◽

Environmental Law ◽

Burden Of Proof ◽

Case Law ◽

Fair Allocation ◽

Protective Measures ◽

Standard Of Proof ◽

The Precautionary Principle ◽

Administrative Courts

This article offers an analysis of the application of the precautionary principle by European courts and the highest Dutch administrative courts in environmental cases. The precautionary principle is one of the leading principles in EU environmental law, but it has no unequivocal meaning. This makes the principle difficult to apply and the allocation of the burden of proof and the level of standard of proof complex matters. In the context of the allocation of the burden of proof, it is essential to make the distinction between the precautionary principle invoked as an obligation or a justification for protective measures. A realistic level of standard of proof is also essential. Without a fair allocation of the burden of proof and a realistic level of standard of proof, either the authorities or the appellants may be exposed to unequal procedural positions and unsolvable evidentiary problems. Analysis of the case law leads to the conclusion that the principle sometimes is misapplied by the Dutch administrative courts.

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