Transnational Regulation of Nanotechnology: Reality or Romanticism?

Abstract

In less than a decade, nanotechnology has exploded from a relatively obscure and narrow technical field to a scientific, economic and public phenomenon. The precipitous emergence of such a broad and significant technology has created an unprecedented opportunity to craft new regulatory or oversight approaches on a clean slate. Indeed, discussions of appropriate forms of regulatory oversight for nanotechnology have shadowed the exponential growth of the technology itself, with a rapid proliferation in calls and proposals for regulation. The actual adoption of nanotechnology-specific regulations, however, has increasingly lagged both the technology and the academic and policy debate:'while governments have invested heavily in R&D programs they have been noticeably unenthusiastic about implementing new regulatory frameworks ' (Bowman and Hodge, 2006: 1065; see also Renn and Roco, 2006).Of the many impediments to the enactment of regulations, one that is of particular interest is the international scope of nanotechnology development (Roco, 2006;Kostoff et al., 2006). Every major industrial country is actively pursuing nanotechnology (Roco, 2006), and none wishes to put its scientists and companies at a competitive disadvantage by unilaterally imposing restrictive regulations. Moreover, the international trade wars which continue to rage over inconsistent regulation in other areas of innovation, such as biotechnology, further caution national governments against attempting to 'go it alone'Electronic copy available at: http://ssrn.com/abstract=1424697 Electronic copy available at: http://ssrn.com/abstract=1424697 There are appealing arguments for harmonisation, summarised in Part I below. To be sure, for the reasons stated in Part II, formal international regulation, as traditionally understood and applied, is unlikely to be feasible anytime soon. Yet less formal 'governance' approaches may still hold promise for promoting the international coordination, if not harmonisation, of nanotechnology regulation; we explore these approaches in Part III. We conclude by suggesting a phased approach to harmonisation, beginning with soft, informal governance measures, then moving, as needed in the future, to a framework convention that would enable mandatory formal rule-making. I. The Appeal of International CoordinationWhile nanotechnology is still an emerging technology, and risk assessment of nanomaterials is even less developed, researchers have identified a range of potential health, safety and environmental hazards in initial screening studies of some nanotechnology applications (Nel et al., 2006;Ray et al., 2009 It is virtually certain, though, given the great number and diversity of current and future nanotechnology products and applications, that some of these will present health, safety or environmental risks if not properly managed (Maynard, 2006 technology regulation has traditionally proceeded at the national or sub-national level, with international coordination limited to a relatively small set of treaties that se...

Regulating Emerging and Future Technologies in the Present

“…Some commentators, however, believe that the disruptive and ubiquitous nature of emerging technologies requires an international governance approach. Such a framework, to be binding in nature, would overlay national regulatory frameworks (see, for example, [1,2,12,13,40]). While such an approach may promote harmonization between jurisdictions, significant barriers to any such global approach-including cultural and political forces, the potential binding nature of any such framework, and the economic costs-make such a proposal unlikely.…”

Introduction: The Regulatory Challenges for Nanotechnologies

“…Looking past traditional state-based legislative and regulatory regimes, a wide range of frontiers exists from insurance 7 to international framework conventions and treaties, tort law, the use of co-regulatory and self-regulatory mechanisms and the adoption of transparent arrangements where information itself is used to encourage and steer corporate behaviour. Abbott et al (2006) have suggested that how we regulate technology involves consideration of a huge diversity of potential risks over long time periods and through a range of dimensions and actors (see also Abbott et al, 2010). They suggest that a wide variety of regulatory mechanisms are possible and that new governance models incorporating soft law options can provide a pragmatic way forward so that, for example, at the international level, say, transnational actors, epistemic communities and self-regulatory mechanisms can contribute to the international regulatory fabric.…”

“…This may take any one of a number of diff erent forms. It may be that in the medium term, as tangible problems begin to emerge, framework conventions are negotiated to deal with specifi c issues (in much the same way as the Vienna Convention has done on the protection of the ozone layer) (Abbott et al, 2006;Abbott et al, 2010). In the longer term, too, as concrete problems become clearer, such issues are eventually covered through a combination of hard and soft law.…”

Regulating Nanotechnologies: Risk, Uncertainty and the Global Governance Gap

“…Where the coordination problem and the interests and capacities of key players are uncertain, international cooperation is bound to be more tentative and exploratory in nature (Abbott, Sylvester and Marchant 2010). It is thus more realistic to expect global governance functions to be built in a flexible, step-by-step, approach.…”

“…2. For an overview of recent scholarship in these fields, see Hodge, Bowman, et al 2010. 3. Notable exceptions include Abbott et al 2006Abbott et al , 2010 governance gaps and solutions. 4 The article investigates the effect that uncertainty has had on emerging nanotechnology regulation.…”