The Interaction of International and Domestic Law: Lessons from the Conflict over Genetically Modified Foods

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.

Our approach is interdisciplinary, drawing from international law and political science, and multi-level, examining the recursive interaction of domestic and international law and politics over time.  We start by inquiring why the US and EU systems for risk regulation are so different in this area, then examine failed efforts to bridge these differences through transgovernmental networks and various multilateral regimes, and finally investigate how international law developments in these fragmented regimes have fed back into domestic legal systems in the US and EU as well as in emerging economies such as China, India and Brazil, affecting the future of genetically modified crops and foods.  Our central arguments can be boiled down to five key points.

First, on the domestic law front, we apply theories of comparative law and politics that attribute differences in domestic risk regulation to differences in organized interests, political institutions, culture and ideas, and contingent events.  We find that the best explanation for the differences lies not in “essentialist” forms of culture or regulatory approaches (such as US and European attitudes toward food, risk, technology or the precautionary principle), nor in institutions alone (such as US specialized agencies compared to European political processes), but in the ability of interest groups to capitalize on pre-existing cultural and institutional differences, with an important role played by contingent events such as the European food-safety scandals of the 1990s.  We contend that the stark differences in the US and EU regulatory systems were not preordained by interest-group, institutional or cultural configurations of the two sides, but were the result of multiple and, to some extent, contingent causes. Nonetheless, we show that the differences have become entrenched over time and are now strongly path-dependent and resistant to change.

Second, turning to the international level, we draw upon a growing body of international relations and international legal scholarship that focuses on the promise of regulation through transnational networks, with a particular emphasis on the prospect of “deliberation” as a form of decision-making in which governmental and non-governmental actors put aside fixed positions and negotiating tactics in favor of a collective search for better understanding and better policy.  We find, however, that the record of transatlantic deliberation on genetically modified organisms (GMOs) has largely been one of failure. Deliberation, we argue, is a hothouse flower that flourishes only under restrictive conditions. The sharp disagreements, intense politicization, and distributive conflicts that characterize agricultural biotechnology have all prevented US and EU policymakers from engaging in a joint deliberative search for the best policy in this area.

Third, we contend that the record of multilateral cooperation (undertaken within overlapping regimes such as the WTO, the Convention on Biodiversity, the OECD, and the Codex Alimentarius Commission), has been similarly limited, characterized largely by strategic maneuvering by both sides to “export” their own standards and their own principles for risk regulation, and to “forum shop” among the regimes most likely to produce each side’s favored outcomes, imposing most of the costs of adapting to new global norms on others. We argue that cooperation has been frustrated in practice by the existence of severe distributive conflict between the two sides, which has given rise to overlapping and (sometimes purposefully) inconsistent regimes for trade, the environment, and food safety. Furthermore, while a growing amount of scholarship has addressed the roles of “soft” law (which is formally non-binding) and “hard” law (which is formally binding and enforceable) as complementary and mutually reinforcing means for international problem-solving, we find that hard and soft law regimes can interact antagonistically.  More specifically, we argue, the interaction of overlapping regimes can serve to “harden” soft-law regimes like the Codex Alimentarius (which become intensely politicized rather than deliberative and technocratic), as well as “softening” hard-law regimes like the WTO and its dispute settlement mechanism (where judicial interpretation is potentially complicated by links to neighboring regimes). The interaction of hard- and soft-law regimes, rather than progressively moving toward a new consensus, may instead perpetuate substantive deadlock over regulatory approaches, especially where conflicts involve powerful states.

Fourth, we suggest that, despite considerable risks, the United States’ complaint before the WTO Dispute Settlement Body has offered the prospect of some clarification and mutual accommodation that had hitherto eluded the two sides in other bilateral and multilateral fora.  More specifically, we apply a comparative institutional analytic framework to examine the radically different institutional implications of the interpretive choices that the WTO judicial panel faced in the EU-Biotech case. We demonstrate how interpretive choices by a WTO judicial body can attempt to allocate decision-making to different institutional processes in which constituencies of different countries, with varying priorities, perceptions, and abilities to be heard, participate to varying and always imperfect degrees. We find that the WTO panel largely took a procedural approach in its decision, refusing to articulate a single substantive standard on GMO regulation, but instead insisting on certain procedural requirements that all states must observe in adopting their own domestic regulations. In the process, we contend, the WTO has empowered domestic political actors (such as the European Commission) with an interest in complying with WTO law, and, as a result, has encouraged regulators on both sides of the Atlantic to operate more transparently, taking into greater account the effects of their actions on third parties.

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. There has, nonetheless, been some domestic change on both sides of the Atlantic, due at least in part to external pressures from international markets and international regimes. In the EU, the Commission and biotech companies have been somewhat empowered by international developments to resume approvals of new GM varieties after a long moratorium and to challenge member state bans against those already formally approved. On the US side, meanwhile, regulators have increased requirements for trials before the commercial release of many GM seeds so that these varieties, in fact, are treated distinctly from more conventional ones, despite official US proclamations to the contrary. Even in the absence of tightened regulation, moreover, US farmers have demonstrated a reluctance to adopt new GM foods and crops which they fear will be rejected in the EU and other large export markets.  The overall picture, we argue, is one in which the two regulatory systems for GM foods and crops remain essentially polarized, but where key actors on both sides struggle to minimize the economic impacts and political tensions of persistent regulatory differences.

In sum, the story of the transatlantic GMO conflict is largely one of failed attempts at bilateral and multilateral cooperation.  Yet our story is not a counsel of despair, for in addition to examining how and why cooperation fails, we address ways in which states and regimes can facilitate the ongoing management of regulatory conflict, and, over time, together with transnational market forces, influence national regulatory and commercial practices in a (somewhat) more accommodating manner.  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.