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4 Sustainable Dev. L. & Pol'y 4 (2004)
Overview of Prior Informed Consent from an International Perspective

handle is hein.journals/sdlp4 and id is 65 raw text is: OVERVIEW OF PRIOR INFORMED CONSENT FROM AN INTERNATIONAL PERSPECTIVE by Melanie Nakagawa* INTRODUCTION rior Informed Consent (PIC) is an important and timely topic because it raises and melds significant issues in the international community beyond those that involve the protection of human health and the environment. PIC is considered by many as both arising from and being an extension of several United States laws, specifically the Toxic Substances Control Act (TSCA) of 1976. This is because TSCA includes provisions on export notification and conditions requiring the United States Environmental Protection Agency (EPA) to implement specific measures to control potential hazards associated with chemical substances or mixtures that present or will present an unreasonable risk of injury to health or the environment. TSCA subjects those persons or companies seeking to export a chemical deemed hazardous by the EPA to a notification process as part of an information sharing procedure for the benefit of the receiving government. The exporter is obligated to notify the EPA of its export plans prior to the actual export. In turn, the EPA provides the importer with information regarding their potential imports. Another U.S. law with a PIC mechanism is the Federal law governing the management of hazardous waste known as the Resource Conservation Recovery Act (RCRA). RCRArequires exporters of hazardous waste to give the EPA sixty days notice prior to the planned export. The State Department, acting for the EPA, gives notice to the receiving or importing government, at which point the importing government must provide written consent to the import. The EPA will provide exporters with infor- mation on the receiving government's consent (with or without conditions) or objections. TSCA and RCRA are detailed examples of how the prior aspect of PIC is used in practice, however, the question remains as to how informed parties are and what constitutes consent. Consider for instance an importer attempting to bring a chemical substance into Brazil. In Brazil, the importer of a chemical sub- stance from the United States receives a federal register notice and several documents about that substance. These documents can consist of dozens or perhaps hundreds of pages of highly technical information. At this point, it is unclear what the Brazilian government actually does with this information, begging the question of whether or not informed consent can be given. This article presents an overview of the current context of PIC by highlighting various international PIC instruments. These include multinational agreements and their PIC provisions as well as international examples to demonstrate PIC's complexity in practice. This article concludes with future PIC developments and challenges facing the growing international community. CURRENT CONTEXT While the PIC notion is rooted in U.S. domestic law, it is important to recognize that it is an evolving idea incorporating a growing number of multilateral environmental agreements (MEAs). The current context of PIC includes the following components: international trade, role of governments, economic and technological advancements, resource constraints, and MEAs. International trade continues to expand dramatically. Although foreign direct investment flows dropped slightly in 2003, the amount of money that large multinational corporations are moving from developed to developing countries far outweighs what the public sector is investing. Put in this context, economic activity is high as goods are continually crossing borders between nations with the help of corporations. One key indicator demon- strating this expansion is the significant increase in the value of goods moving internationally since the World Trade Organization was established in 1995. It is important to note the role of governments and the chal- lenges they are presented with when creating international regimes to address the rise in international trade in a growing global environment. For example, the United Nations (UN) consists of 191 Member States, of which nearly two thirds were not recognized countries when the UN was founded in the 1940s. The diversity of resources, languages, economies, and national priorities for all 191 countries makes global consensus on common approaches nearly impossible. Recent technological advancements present important cross currents to consider when looking at PIC regimes in different countries. These advancements range from what testing method- ologies can be used to evaluate and manage potentially hazardous chemicals to new technologies leading to an expansion of trade in genetically modified crops. There are also differences in capacity between governments and industries. For instance, the United States, Australia, and Europe have a relatively high level of tech- nical sophistication, legal capacity, and a robust regulatory regime in comparison to developing countries. Similarly this capacity difference can also be exemplified by the number of environmental protection employees in the United States compared to China. The U.S. EPA employs roughly 18,000 people while China's State * Melanie Nakagawa is a J.D. and M.A. (International Affairs) candidate, 2005, at American University, Washington College of Law and School of International Service- SUMMER 2004

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