An Initial Response: Framing Biases and the Role of International Law in Dispute Management

We are grateful for the praise and the criticisms of our book from distinguished scholars like Sungjoon Cho, Rebecca Bratspies, and Tomer Broude. We are particularly pleased that all three appreciated our efforts to engage in an interdisciplinary and multi-level analysis, to do empirical justice to the complexities of the GMO dispute, and to identify the broader implications of the case for the study of international law and politics. We address three issues in particular that deserve a response: our biases in the US/EU dispute; the question of how the dispute might be managed while respecting both sides’ interests and normative frameworks; and the question of how hard and soft law interact in this case and in others. We will deal with the first two here and the other one on hard-soft law in a separate post.

Where Do Our Sympathies Lie?

Our primary aim in When Cooperation Fails is analytic – to understand the roots of the dispute, the various failures to resolve it through bilateral and multilateral cooperation, the international law that has arisen from it, and the impact of that law, in particular of WTO dispute settlement. In doing so, we reveal one explicit normative bias, namely in favor of careful and realistic dispute management, which recognizes the limits of cooperation and respects the democratically adopted regulatory frameworks of the two sides, yet also encourages both sides to take into account the effects of their policies on third parties – and, in the process, to avert a mutually harmful trade war. Even here, however, we have kept our own normative views in the background, choosing instead to highlight our positive analysis of the obstacles to successful cooperation and to any reform of deeply entrenched domestic regulatory frameworks.

By contrast, we have tried hard to avoid taking sides in the normative dispute between the US’s more permissive (or “science-based” – a term we deliberately insert in quotations) approach and the EU’s more precautionary approach. One of us (Pollack) is primarily a scholar of European Union politics, while the other (Shaffer) undertook much of his research for the book in Brussels, Geneva, and Rome, visiting the headquarters of various international institutions. As a result, we believe that we understand the EU approach and position at least as well as the American. We do not assume that the more precautionary European approach to GMOs is either protectionist or irrational, and we agree with scholars like Jonathan Wiener and Michael Rogers who note that the United States is strongly precautionary in other areas such as the regulation of carcinogens and nuclear power. We also do not advocate the convergence of the EU regulatory framework on the US model (or vice versa), nor do we believe that such convergence is likely anytime in the near or medium-term future.

That being said, we do not contest that any piece of scholarship frames issues, and that such framings have implications for normative position-taking. To the extent that we do, as Rebecca suggests, adopt language that appears tilted in favor of the US approach, we suspect that this reflects in large part our focus on the role of international trade law, which as we note in the book is more congenial to the US approach due to its emphasis on scientific risk assessment and its silence on other socioeconomic or normative criteria that public officials might wish to take into account when regulating GMOs.

Regarding the reference to the EU regulatory system as a Potemkin village (261), this is indeed a widespread complaint among foreign stakeholders, and also among European biotech firms such as Bayer Cropscience, which have seen their applications stalled for years in the EU regulatory process with no substantive engagement. We frankly have some sympathy with this view, but we see it not so much as a bias in favor of the United States position, but rather an observation that the letter of EU law often masks a regulatory practice which is guided less by scientific risk analysis or policy deliberation than the EU’s own directives, regulations and policy statements might lead one to believe.

As regards the statement in quotes that “states have the right to be irrational,” that quote is from a European theorist of deliberative democracy applied to the GMO debate, not from us. Our point in the passage (209) was to note the tensions between the statement of a “right to irrationality,” on the one hand, and the very notion of deliberative democracy, on the other, as well as the fact that the statement ignores the impacts of EU measures on others, including on investment in technological developments in less developed countries, which we address in the book’s final chapter.

In any event, we hope, and believe, that none of our analysis in the book relies in any way on a preference for one or the other regulatory framework, both of which appear to be here to stay with only minor, path-dependent changes at the margins.

Managing, if Not Resolving, the Dispute

A common theme of all three commentators is an appreciation of our claim that neither traditional cooperative efforts nor WTO litigation is likely to settle the dispute definitively and force convergence of the two very different regulatory frameworks.

Nevertheless, the period since the adoption of the WTO panel ruling in December 2006 has been striking in terms of the relative peace between the two sides, with the United States agreeing to hold off on withdrawing trade concessions from the EU pending compliance, and indeed with Canada settling its dispute with the EU over the issue. To some extent, we argue in the book, this is due to market developments in the US, where farmers and biotech firms have grown increasingly skittish about adopting new biotech crops prior to approval of those crops in major export markets such as the EU.

In addition, however, a major element in the ongoing truce between the two sides has been the sophisticated (if sometimes thankless) strategy employed by the European Commission to defuse the conflict while retaining the essential features of the EU regulatory system. Immediately following the issuing of the WTO panel decision, the Commission attempted to overturn national safeguard bans on the importation and cultivation all GM crops that had been judged safe by the EU’s own food safety authority, only to see those efforts rejected by majorities in the Council of Ministers.

Since then, the Commission has adopted a more moderate approach, tacitly accepting member states’ deep-seated opposition to cultivation of GM crops on European soil. Instead, the Commission has focused its approvals, and its challenges to national safeguard bans, on a limited number of products that are economically important to US and Canadian farmers and biotech firms. In our view, the Commission’s strategy is interesting in terms of the interaction of domestic and international law and politics. By focusing on the sale (as opposed to the cultivation) of a limited number of GM crops that Canadian and US farmers actually care about, the Commission may succeed in defusing, if not eliminating, the long-standing transatlantic GMO dispute – and in so doing, reduce the international legal pressure on the EU to reform or weaken its own rules.

The Commission strategy has indeed already paid off with Canada, which withdrew its WTO complaint against the EU in July 2009 after the Commission pushed through approval of the GM flax that Canada seeks to export to the EU. At this writing, the limited number of EU approvals has not yet satisfied the US, but even the US has so far agreed not to impose trade sanctions against the EU, as it is legally entitled to do, while the Commission continues its efforts to approve particular GM foods, such as various corn varieties that are commercially important to US farmers, and which are of often used in animal feed.