A Failure of Cooperation or Cooperation of Failure?

by Sungjoon Cho

In their recently published book (“When Cooperation Fails”), Mark Pollack and Gregory Shaffer provided a rare panoramic view of one of the most intractable trans-Atlantic regulatory disputes, i.e., the regulation of genetically modified (GM) foods. One may discover the richness of their thorough study mainly in two aspects. First, the methodology which they employ is not only interdisciplinary but also “multi-disciplinary,” featuring a disciplinary pool of international law, political science and even sociology. Varying insights from such a multidisciplinary approach tend to offer readers a more complete picture of the trans-Atlantic GM saga. Second, the issues or topics addressed by the authors in relation to the GM dispute are all-encompassing. Yet they spell out these impressive details not in a linear but in a cubic fashion so that readers can obtain a vivid understanding of what is truly at stake in the dispute.

 

In this kind of dispute, which concerns a clash of two different regulatory regimes, it is quite easy, and tempting, to be “deterministic.” In other words, one might reasonably speculate that what has happened (such as the failure of cooperation) is attributable simply to some kind of “cultural essentialism.” In a most crude form, the GM foods dispute might originate from the fact that Americans are risk-friendly and Europeans risk-averse. However, the authors refused to take such wholesale determinism: instead, they try to present a more subtle thesis in which different institutional configurations have formed an inertia or path-dependency over time as they were shaped by certain contingencies (such as Reagan’s election and the pan-European food scandals). So, according to the authors, the status quo in both sides is “not preordained” by structural factors alone.

 

Nonetheless, 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. This is a rather sterile condition for any meaningful deliberation. Again, as the authors recognized in a similar context, one should not jump to the conclusion that the U.S. side would always subscribe to techne/episteme and the EU to phronesis. Yet a combination of historical contingencies and institutional configurations somehow made such selective salience in both sides possible.

 

Nowhere but in the controversial Hormones decisions (in 1998 and 2008) under the WTO dispute settlement system could this paradigmatic conflict over science be witnessed. In both 1998 and 2008 decisions, positions on risk science between the panel and the Appellate Body were as contrasting as those between the complainant (the U.S.) and the defendant (the EU). Perhaps the antinomian legacy of the Hormones decision might have led the EC-Biotech panel to avoid, rightly, a substantive mode of adjudication. Dogmatic stances of both sides, whether they were pre-destined or merely fortuitous in their making, tend to advise against any Herculean role of WTO tribunal in delivering its own “right” answer in this type of dispute.

 

In closing, 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. It may take a good deal of time before such communication bears any genuine trans-Atlantic regulatory breakthrough, be it soft or hard. Until then, both sides should learn to live not with the failure of cooperation but with the cooperation of failure.

http://opiniojuris.org/2010/01/05/a-failure-of-cooperation-or-cooperation-of-failure/

4 Responses

  1. I think everyone would be better served by a reprisal of the Hormones decision, and the acknowledgment that the EU’s position on such things is almost entirely without merit.  The matter will continue to be intractable in negotiation because no amount of scientific evidence will change Europe’s position.

    This is mere populism, without even the thin veneer of science, catering not only to a popular fear of science, but also towards protectionist urges, to which they provide an excuse.

    Alas, French courts were still hauling down cell phone towers, last I heard…

  2. Response…

    The Hormones Panel in fact implied that the EU’s ban might have protectionist motivations, which was reversed by the Appellate Body. Certainly, the ban keeps the U.S. (hormoned) beef out of the EU market. Nonetheless, there is also a strong “fear” factor behind this ban generated by various food safety scandals in Europe before the ban was introduced. Similar developments took place in the U.S. when the Delaney clause was introduced in the Fifties. After all, science is not clear-cut.

  3. Res
    Mark Pollack and Greg Schaffer’s major study offers an extremely valuable approach, bringing together not just law and politics, but also at international and domestic levels. It is good to see critical analysis of deliberation and ‘soft law’, attractive concepts but in practice needing to be linked with interests and power, without falling into a simplistic approach based on thin understandings of interests. An interesting question is how non-majoritarian institutions such as regulatory bodies manage issues that highly publicly controversial like GM foods as distinct from more technical and less visible ones, such as those in network industries.
    ponse…

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