Who Decides and Why?

I want to congratulate Mark Pollack and Gregory Shaffer for their recently published book When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford 2009). Using the WTO proceeding  as a focal point, When Cooperation Fails explores the vexing question of why multiple international and bilateral initiatives have failed to resolve the transatlantic GMO dispute. The book offers a clear and detailed tour of “the difficulties, limits, and outright failures of international cooperation” (pp. 3, 280) for regulating GMOs. It also details the success that international institutions and legal frameworks have had in channeling and managing the dispute in a fashion that has so far prevented a trade war.

Overall, the authors manage to inject some much-needed nuance into a discourse that is typically far too polarized and polarizing. In particular, I appreciated the book’s explicit dismantling of essentialist claims about an inherently “European” or “American” approaches to regulation. Instead, Mark and Greg meticulously detail something akin to a founder’s effect, with serendipitous first moves creating path dependencies that ultimately produce starkly different regulatory regimes.

Despite its narrow focus on GMOs, the book aspires to be much more than an account of a particular trade dispute, and to a large degree it succeeds in using the GMO dispute to test theories about transnational networks, epistemic communities and deliberative democracy. The theories emerge a bit battered, but perhaps also a bit more solidly rooted. In their articulation of what international law and institutions can achieve with regard to deeply politicized issues, Mark and Greg walk a careful line between so-called realism, which focuses solely on power; international relations theory, which focuses on convergences within networks of shared interests, and Habermasian deliberation. They offer valuable insights about the relationship between deliberation, distributive costs, and regime theory, and by highlighting the intersection points between theories that are too often considered in isolation they add a gloss to the international discourse. Indeed, their skillful treatment of this point is a key contribution to the literature.

Mark and Greg also do an admirable job of teasing out the complex dance between hard and soft law instruments in the context of agricultural trade. They are particularly successful at documenting how the GMO dispute has, at the same time, hardened some soft law instruments while also softening some hard law. This insight alone would make the book worth reading. Where the book falls down a bit is in exploring a central question embedded in this insight—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. Nor is it irrational for domestic regulators to incorporate consumer protection, biodiversity and ethics in order to develop a holistic strategy for getting ahead of risk when making regulatory decisions about GM crops. Such an approach is certainly different from the one that has held sway in the United States, but it is perfectly reasonable. Nor is it irrational for states to respond to concerns that their citizens have repeatedly identified as a priority. These concerns instead represent a different vision of risk regulation, based on a unique set of experiences, and a different prioritizing of the questions and issues surrounding production of food.

Although the book nominally addresses the possibility of change within both regulatory systems, the thrust is on bringing the “political” European system in line with the “scientific” United States approach. Their sympathy for the US approach was patent, and at times that interfered with dispassionate analysis.

There is nothing wrong with taking a normative position that the United States has the better of the argument with regard to regulation of GMOS. GMOs are a fraught topic and it would be next to impossible to work in this area without developing sympathy toward one side or the other. I have often written about the tendency of pro-GMO and anti-GMO camps to talk past each other. For this reason, I appreciate the temptation not to take an explicit position in the hopes of getting the attention of all sides of the dispute. But, particularly when writing about a subject with ideological minefields, failing to openly acknowledge a normative position jeopardizes the authors’ credibility.

For example, it just doesn’t ring true to put the criticism of the EU regulatory system as a “Potemkin village” (p. 261) in the mouth of “many non-European farmers and traders.” (id.) Again, there is no reason the authors should not make this critique, but it seemed inauthentic to do so through invoking unnamed others who apparently view EU regulation as “lots of costly show . . masking a deeply politicized process. . . . “

Much of the book focuses on the central problem before the WTO: “who decides” and Mark and Greg do an admirable job of offering different theoretical windows on how this question might be answered. But again, I wanted a bit more engagement with first principles—in this case to explore more fully the rationale for allowing international trade law to dictate a common matrix for assessing risk, even when different domestic constituencies have dramatically different perceptions of risk and there is no allegation of discrimination against foreign producers. What is gained and what is lost by this particular hardening of soft law? This part of the WTO’s jurisprudence creates such widespread consequences that it calls out for a more rigorous exploration. The authors detail how WTO decisions harden soft law, but do not really confront the normative consequences.

Despite these criticisms, which are in many ways quibbles, I highly recommend When Cooperation Fails. The book is well-written and well-researched. It does an admirable job of explaining the WTO’s GMO decision (no mean feat given the length of the decision) and then effectively uses that decision as a lens for exploring some of today’s most important international law theories.