The Regulatory Framework for Nanomaterials at a Global Level: SAICM and WTO Insights

• DOI: http://doi.org/10.1111/reel.12031
• Author: Rachel Liechti,Georg Karlaganis
• Date: 01 July 2013
• Published date: 01 July 2013

The Regulatory Framework for Nanomaterials at

a Global Level: SAICM and WTO Insights

Georg Karlaganis and Rachel Liechti

The regulation of nanomaterials is being discussed at

various levels. This article offers a historical descrip-

tion of governmental activities concerning the safety

of nanomaterials at the United Nations (UN) level

since 2006, with a focus on the UN Strategic Approach

to International Chemicals Management (SAICM).

The outcomes of the SAICM process were a nanospe-

cific resolution and the addition of new activities on

nanotechnologies and manufactured nanomaterials to

the SAICM’s Global Plan of Action. The article dis-

cusses the implications of these decisions for multilat-

eral environmental agreements. In addition, it studies

the consequences of the regulation of nanotechnologies

activities on trade governance, in particular the

relationship between the SAICM to the legally binding

World Trade Organization (WTO) agreements

(notably the General Agreement on Tariffs and Trade

and the Agreement on Technical Barriers to Trade).

The article concludes that the SAICM decisions on

manufactured nanomaterials are compatible with

WTO law.

INTRODUCTION

Law regularly lags behind new technologies. This situ-

ation, which has not changed since the invention of

railway trains, applies also to nanotechnology in the

twenty-first century.1What makes products containing

nanomaterials so remarkable is that their whole life

cycle – from production through use to disposal –

raises questions concerning their positive and negative

effects on welfare, health and the environment.2

Examples of important nanomaterials are organic

carbon compounds (carbon nanotubes and fullerenes)

and inorganic metal oxides, the latter accounting for

80% of the share of nanomaterials in the form of

powder on the world market.3The balance of benefits

and risks differs during the various stages of the life

cycle and therefore cannot be uniformly assessed and

managed. In addition, nanotechnology is applied in

various sectors, from hardware to food. This situation

raises the question of whether regulations in European

and international law, notably the World Trade Orga-

nization (WTO) agreements and European Union (EU)

law, are capable of dealing with the challenges of new

technologies or whether new instruments are needed.

Some studies have taken a first step in this direction by

discussing existing legal sources, and by building a

foundation for future investigation as well as legal

development at the European and international levels.4

The open questions are whether existing WTO law,

notably the General Agreement on Tariffs and Trade

(GATT),5the Agreement on Technical Barriers to Trade

(TBT Agreement)6and the Agreement on the Applica-

tion of Sanitary and Phytosanitary measures (SPS

Agreement),7as well as European primary and second-

ary law, provide for sufficient solutions for dealing with

products containing nanomaterials. The questions call

for differentiated solutions in the areas of risk assess-

ment, authorization, labelling and effective implemen-

tation of product liability in international trade.

The article proceeds as follows. It starts with a historical

description of governmental activities concerning the

safety of nanomaterials at the United Nations (UN)

1See, generally, G.A. Hodge, D.M. Bowman and A.D. Maynard

(eds.), International Handbook on Regulating Nanotechnologies

(Edward Elgar, 2012).

2C. Som et al., ‘The Importance of Life Cycle Concepts for the Devel-

opment of Safe Nanoproducts’, 269:2–3 Toxicology (2010), 160.

3Abercade, ‘Metal Oxides Constitute 80% of the Nanopowder Market

Value’ (29 June 2010), found at: <http://www.abercade.ru/en/

materials/industrynews/443.html>.

4F. Perrez and G. Karlaganis, ‘Emerging Issues in Global Chemical

Policy’, in: P. Wexler, J. van der Kolk, A. Mohapatra and R. Agarwal

(eds.), Chemicals, Environment, Health, a Global Management Per-

spective (CRC Press/Taylor & Francis Group, 2012), 689; G. Karla-

ganis and F.X. Perrez, ‘Chemicals Legislation and Policy’, in:

K. Bosselmann, D.S. Fogel and J.B. Ruhl (eds.), Berkshire Encyclo-

pedia of Sustainability, Volume 3: The Law and Politics of Sustain-

ability (Berkshire, 2011); TA-Swiss (Centre for Technology

Assessment), Nanomaterialien: Auswirkungen auf Umwelt und

Gesundheit (vdf-Verlag, 2013), found at: <http://www.ta-swiss.ch>;

Report on Nanotechnologies and Manufactured Nanomaterials (UN

Doc. SAICM/ICCM.3/INF/18, 19 June 2012); Report of the Interna-

tional Conference on Chemicals Management on the Work of its Third

Session, Nairobi, Kenya, 17–21 September 2012 (UN Doc. SAICM/

ICCM.3/24, 29 October 2012) (‘ICCM3 Report’), at 38 and 49.

5General Agreement on Tariffs and Trade (Marrakesh, 15 April 1994;

in force 1 January 1995) (‘GATT’).

6Agreement on Technical Barriers to Trade (Marrakesh, 15 April

1994; in force 1 January 1995) (‘TBT Agreement’).

7Agreement on the Application of Sanitary and Phytosanitary Mea-

sures (Marrakesh, 15 April 1994; in force 1 January 1995) (‘SPS

Agreement’).

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Review of European Community & International Environmental Law

RECIEL 22 (2) 2013. ISSN 0962-8797

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