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Negotiating the precautionary principle: regulatory and institutional roots of divergent US and EU positions

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The precautionary principle has been a bone of contention in international negotiations on the governance of environmental and health risks. The US administration and European institutions often present opposing views on whether formal references to precaution help or hinder the global governance of risk, in particular where linked to world trade. The European Commission official position, backed by Council, Parliament and some Member States, advocates the principle's use in legal texts and pushes for the elaboration of international guidelines for its application. The proposed guidelines, whilst explicitly conforming to basic principles of trade law, include recommendations on broad socio-economic impact analyses of alternative risk mitigation measures and emphasise political aspects of decisions on risk. The US administration's official position papers oppose references to precaution and socio-economic impact analysis in international laws and guidelines on risk analysis. They mainly cite fears of abuse of the concept as guise for protectionist measures. In each administration a wide range of state and non-state actors with disparate views inform policy makers who then have to adopt one coherent position. This article suggests that overarching differences in the negotiating positions adopted by the US and European institutions, often attributed to culturally and politically rooted biases on risk and uncertainty, are also reflected in institutional practices and regulatory frameworks of the two jurisdictions. It recommends taking disparate institutional structures and regulatory frameworks into account in future deliberations on international guidelines on risk analysis.

Keywords: precautionary principle, other legitimate factors, economic analysis, Codex Alimentarius Commission, Organisation for Economic Cooperation and Development, European Union, USA, regulatory frameworks and institutions, OECD

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