The development of the precautionary principle in international and Indonesian environmental law

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 initial recognition of the precautionary principle in Indonesia resulted, 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.