The Development of the Precautionary Principle in International and in Indonesian Environmental Law
Year: 2011
Type: preprint
Abstract: The precautionary principle is perhaps one of the most controversial environmental law principles. Some scholars have criticised the principle by pointing at its lack of clarity, and have doubted whether it can be deemed a legal principle. This article discusses the development of the precautionary principle at the international level, and its adoption into Indonesian law. The article shows the formulations of the precautionary principle in various documents and analyses the elements of the principle derived from such formulations, concluding that many critics have not only oversimplified the term ‘uncertainty’ as ‘risk’, but have also confused the precautionary principle with the principle of prevention. Indonesian courts play a very important role in the adoption the principle. The recognition of the precautionary principle in Indonesia resulted for the first time, not from environmental statute , but from two court decisions. Indonesian experience in applying and interpreting the precautionary principle shows three important characteristics. First, the precautionary principle has been recognised as a general principle of environmental law. Second, risk assessment is considered as an implementation of the precautionary principle. Third, the precautionary principle might be incorporated into tort law, through the application of strict liability. The recognition of the precautionary principle in tort cases would be welcome as in Indonesia.
Source: SSRN Electronic Journal
Author: Andri Gunawan Wibisana
Institution: University of Indonesia
Language: English
Subfield: Management, Monitoring, Policy and Law
Field: Environmental Science
Domain: Physical Sciences
Open Access status: green
OpenAlex ID: W2149855301