Precautionary Principle in Nanotechnology, a Preliminary Overview

Saturday, March 18, 2006

There is an ongoing debate between Nanotechnology supporter and opponent on how to manage the change toward Nanotechnology era. Europeans, Prince Charles, Environmental Defense and Green Peace are among those adherents of the "strict" precautionary principle. The CRN advocates what is called with "active" precautionary principle. The Extropians favors what they called as "proactionary principle", while World Changing is examining a middle ground between Precautionary and Proactionary principle by developing the "reversibility principle".
Of all the principles above, the winner is still the Precautionary Principle.
Precautionary Principle in Hard Laws, Soft Laws and Judicial Decisions
Treaties are binding source of International Law. It binds states who consented to be bound by it. Soft Laws (declarations) are not a binding source, it was only meant to suggest. Judicial decision constitute a real-life application of the principle. It is important to note that decisions are often applied only on a case by case basis and no stare decisis applies.
Precautionary Principle has been used in the numerous hard laws such as the Bamako Convention (Africa), Maastricht Treaty (EU), Helsinki Convention on Transboundary Watercourses,  Article III-233 of the draft Treaty establishing a constitution for Europe and Article. 5.7 of the Agreement on the Application of Sanitary and Photosanitary Measures, 1992 Paris Convention on the North East Atlantic, Convention on Biological Diversity, and the 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks.
Soft laws embodying it for example is the 1987 Montreal Protocol, 1992 Rio Declaration on Environment and Development.  
Judicial Decisions includes Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovak.), 1997 I.C.J. 7 (Sept. 25), Southern Bluefin Tuna Case (Austl. and N.Z. v. Japan at ITLOS), The MOX Plant Case (Ireland v. U.K., at ITLOS), EC Measures Concerning Meat and Meat Products (Hormones) at W.T.O and Balmer-Schafroth v. Switzerland (Foot and Mouth Desease, at ECHR).
Status in Public International Law
States can be bound by a principle although they are not party to a specific treaty if the principle becomes a general-customary international law. Article 38 of the ICJ statute requires "evidence of a general practice accepted as law" or a "state practice as evidence of opinio juris". Currently, there has been disagreement as to whether Precautionary has become a general customary international law. Some says that the vast amount of support reflected in Conventions, Declarations, State Practices and Judicial Decision is an evidence that it is in fact a Customary Law (See Note 1, below).
I am in the position that in order to establish whether this principle is binding to states or not, it must be examined on a case by case basis. As a consequence, the claim that the principle is binding as a general customary law shall be dismissed. Possibility of a persistent objector should alsobe considered.
Application to GMO
The General Agreement on Trades and Tariffs, with Annexes and Schedules of Tariffs Concessions (GATT), 30 October 1947, U.N.T.S. 187, limits unilateral GMO regulation as it deem that it can amiunt to “a disguised restriction on international trade”. The Cartagena Protocol regulates that GMO products traded between these countries must be stored in packages bearing the label “may contain GMOs”. Meanwhile, the Convention on Biological Diversity of 1992 requires state parties “consider the need for and modalities of a protocol setting out procedures… in the field of the safe transfer, handling and use of any living modified organism resulting from biotechnology that may have an adverse effect on the conservation and sustainable use of biological diversity” (Article 19 point 3).
Consequences toward Nanotech
Given the strong magnitude of support toward Precautionary Principle and its continuous progression from general policy into legal rule, it is likely that the future nanotechnology products and process will have a high demand of regulation.
It can be concluded that although in the future states cannot unilaterally restrict the trade of nanomaterials and nanoscale products (as applied to GMO), nano-labelling can be expected as an emerging, unavoidable consequences. Consequently, it may be imperative to immidiately assess the preliminary suggested procedures for nano-labelling.
Mohamad Mova Al 'Afghani
1. The precautionary principle is regarded by some as having crystallized into a general principle of customary international environmental law. Whether it has been widely accepted by Members as a principle of general or customary international law appears less than clear.  We consider, however, that it is unnecessary, and probably imprudent, for the Appellate Body in this appeal to take a position on this important, but abstract, question”. (Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones) ("EC – Hormones "), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135, at para. 123)