As Joel noted, over at Opinio Juris, they are discussing the new book by Greg Shaffer and Mark Pollack, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford, 2009). Greg and Mark introduce the book as follows:
As its title suggests, When Cooperation Fails has two distinct aims. The specific empirical aim is to provide a definitive and theoretically informed account of one of the most bitter and politically charged international disputes of the past two decades, between the United States and the European Union over the regulation of genetically modified foods and crops. Our theoretical aim, however, goes far beyond the specifics of the GMO case: indeed, we seek to contribute to literatures in international law and international relations that identify the sources of international regulatory and trade disputes, the obstacles to successful cooperation, the interaction of hard- and soft-law international regimes, and the role of WTO dispute settlement in managing conflict.
With regard to the regulatory differences that are at the heart of the GMO conflict, they note:
Fifth and finally, we return to the domestic level to assess whether several decades of discussion, negotiation, and litigation have resulted in significant reform and/or convergence of the two regulatory systems. We demonstrate that, despite some domestic changes on each side, the US and EU regulatory systems for agricultural biotechnology show few signs of real convergence toward a common regulatory model.
...
System friction between two entrenched regulatory systems is unlikely to be decisively settled in the near future, but the dispute can be managed, with key roles for international law and international institutions.
So, perhaps the conclusion is, things are bad, but they could be worse without the WTO! [ADDED: Now that I see the latest post by Greg and Mark, let me amend this statement to the following: Things aren't all that bad, in part thanks to the WTO.]
As for the commenters, Rebecca Bratspies thought they (1) failed to address some core issues and (2) were a little too hard on the Europeans:
Where the book falls down a bit is in exploring ... whether it is appropriate for the WTO’s dispute resolution process to dramatically expand the reach of trade law into erstwhile domestic environmental, consumer and food safety law questions via broad application of the SPS Agreement premise that regulation must be based on scientific risk assessment.
It was here that found myself wishing for more. The book was far too willing to credit United States claims of “scientific” regulation, and to dismiss the European approach as invalid. For example, at one point the European position gets reduced to the argument that “states have the right to be irrational.” (p. 209). This framing hardly does justice to the European position. It is not irrational to conceive of risk assessment as a combined political and scientific question, one that captures both the acceptability and the magnitude of a risk.
On the first point, I would add that it's not just the WTO's dispute resolution process that expands the reach of trade law -- it's the substantive agreements themselves, which, in effect, means that it's the governments who drafted the agreements.
Sungjoon Cho is next up. He makes the following point regarding the science behind the conflict:
the trans-Atlantic divergence (polarization) in the regulation of GM foods does reveal two different “philosophical” or hermeneutical patterns in perceiving (good) biotech “science.” Overall, the mode of scientific knowledge which the U.S. side applies here is a narrow, technical one depending largely on laboratory science (techne or episteme). In contrast, the EU side emphasizes a more common sense approach to biotech science (phronesis) which take seriously ordinary people’s perception of science in a given matter. Therefore, the U.S. side tends to condemn the EU position as a “bias” which must be remedied with enlightenment, while the EU side tends to criticize the U.S. stance as an attempt to “Americanize” the regulation of GM foods.
I wonder if perhaps the source of the conflict could be stated as follows. There are two, very different approaches to putting new products on the market: (1) they can only be sold if they are proven safe; or (2) they can be sold as long as they are not proven harmful. Is it correct to say that both approaches are "based on science," in some sense?
Sungjoon concludes:
I agree with the authors that this dispute is something to be “managed” with patience, rather than “settled” once and for all. Managing the trans-Atlantic tension on GM foods regulation starts with the “fidelity to openness,” which pushes both sides to learn more about the other party’s position, including its policy rationale, context and tradition. Perhaps both sides should stop trying to “control” the situation: they should instead endeavor to “communicate” with each other.
Finally, Tomer Broude had some quibbles with the authors' discussion of "hard" and "soft" law, including this point:
What I found much less convincing is the author’s symmetrical contention that the WTO’s ‘hard’ law, especially its dispute settlement system, has somehow been ’softened’ by the GMO dispute.
As for me, I'm curious as to what the authors think about labeling as a possible solution to these kinds of regulatory differences (I have not seen the book, so I don't know whether they talk much about this). Under a GMO labeling regime, the EU would concede that GMO products could be sold, but the U.S. would have to accept a lower than expected sales volume as some consumers would be scared off by the label. Is this a good compromise?
