Threat, uncertainty and the burden of proof : a legal review of the standards of the precautionary principle / Ma. Nikka Andrea F. Oquias
Material type:
TextPublisher: Cebu City : University of Cebu, 2018Description: viii, 86 leaves : illustrationsContent type: text Media type: unmediated Carrier type: volumeSummary: Summary: The precautionary principle emerged to address the struggle against the growing reactive approach to environmental protection. Its core is the idea that decision makers should act in advance to protect the environment when there is threat of harm despite uncertainty.The study takes a closer look at the jurisprudential application of the precautionary principle to investigate the procedural arrangements that trigger its application. This is done because majority of those instances where the precautionary principle was invoked resulted to a denial for its application. Using qualitative and appreciative inquiry, this study examines relevant domestic,ICJ, and EU jurisprudence. This paper reveals how current threshold of threat and uncertainty set by the courts remains high and still grounded in the traditional rules of evidence, thereby undermining the true essence of the precautionary principle.This inclination to demand higher evidentiary threshold to trigger the application of the precautionary principle renders environmental protection and ultimately the constitutional right to a healthy and balanced ecology inferior.This paper claims that a procedural arrangement ,which lowers the evidentiary standard of proving harm and high tolerance to scientific uncertainty, and the shift in the burden of proof, ought to be implemented in environmental cases to remain consistent with the principle's substantive essence.
| Item type | Current location | Call number | Status | Date due | Barcode |
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Thesis
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Periodicals | T Oq5th 2018 (Browse shelf) | Not for loan | 3UCBLL00008564 |
Thesis (Degree of Juris Doctor)-- University of Cebu- Banilad, 2018.
Includes references (leaves 81-85).
Summary: The precautionary principle emerged to address the struggle against the growing reactive approach to environmental protection. Its core is the idea that decision makers should act in advance to protect the environment when there is threat of harm despite uncertainty.The study takes a closer look at the jurisprudential application of the precautionary principle to investigate the procedural arrangements that trigger its application. This is done because majority of those instances where the precautionary principle was invoked resulted to a denial for its application. Using qualitative and appreciative inquiry, this study examines relevant domestic,ICJ, and EU jurisprudence. This paper reveals how current threshold of threat and uncertainty set by the courts remains high and still grounded in the traditional rules of evidence, thereby undermining the true essence of the precautionary principle.This inclination to demand higher evidentiary threshold to trigger the application of the precautionary principle renders environmental protection and ultimately the constitutional right to a healthy and balanced ecology inferior.This paper claims that a procedural arrangement ,which lowers the evidentiary standard of proving harm and high tolerance to scientific uncertainty, and the shift in the burden of proof, ought to be implemented in environmental cases to remain consistent with the principle's substantive essence.
Law Law
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