Penn State Law Review
Nanotechnology today is viewed by many as a great advance in the quest for stronger and lighter materials, more effective pharmaceuticals, and better medicine. The critical question—largely unanswered—is whether this kind of science harbors destructive powers which, if fully understood, would call for restrictions or a ban on the use of certain types of nanotechnology. Current regulations in the United States and Europe cover chemicals that may be produced in nanoform. However, those regimes are not well designed to detect the risks posed by nanotechnology because they often fail to appreciate what is unique about nanomaterials. It is unlikely that individual countries will act to effectively address nanotechnology risks because dangers are still uncertain and the potential costs of regulation are high. Logically, nanotechnology risks should be addressed at the international level because nanomaterials cross borders and pose issues worldwide. However, there is little precedent for such regulation and addressing it at the international level poses many obstacles.
The best course is to develop the “soft law” predicate for later “hard law” regulation. Such non-binding international norms or agreements should include codes of conduct, aspirational guidelines, statements of best practices, voluntary reporting, risk management systems, and licensing, accreditation, or certification schemes. Soft law can be used to create expectations which, once widely endorsed, can later be translated into binding legal obligations. Minimizing the health, safety, and environmental risks related to nanotechnology requires raising the visibility of the issue, collecting reliable data, establishing prudent practices, building an international consensus, and eventually enacting and enforcing binding obligations that reflect a prudent balance between economic progress and hazard prevention.
Vincent R. Johnson, Nanotechnology, Environmental Risks, and Regulatory Options, 121 Penn St. L. Rev. 471 (2016).