At Greg Shaffer’s invitation I’m joining the discussion to make a couple of small points about some of the concepts used in Greg and Mark’s very interesting and carefully researched book. The first concerns the GMO case as an example of a “regime complex.” When David Victor and I first proposed the concept of a regime complex, we used the example of property rights in genetic resources. (Raustiala and Victor, “The Regime Complex for Plant Genetic Resources,” International Organization 2004). But we suggested that many regime complexes existed, and that once scholars began to look at the world through this lens the limits of focusing on discrete institutions and agreements (ie “regimes”) would become clearer. 

Greg and Mark nicely illustrate why it is essential for international lawyers and political scientists alike to think in terms of sets of overlapping but distinct regimes, and to explore the dynamics that emerge from the interactions among these component parts.  I hope others follow their lead, because as the density of international law and institutions increases regime complexes will proliferate. For international lawyers, this is a slightly different spin than the more typical focus on “fragmentation.” Fragmentation is an important phenomenon, but I believe the more critical feature to focus on, as Greg and Mark do, is institutional overlap.

My second point concerns the soft law-hard law discussion now ongoing on the blog. While it is a small and perhaps even semantic point, I am not a believer in the utility of the concept of soft law. As I have detailed in other writings, I think that calling some sets of norms and agreements “soft” law makes little conceptual sense. (Here I part ways with two scholars I greatly respect, Duncan Snidal and Ken Abbott, whose framework Greg and Mark adopt).

Law is a formal category, though as self-proclaimed legal realists Greg and Mark know that many non-legal factors influence legal decisionmakers. The discussion now ongoing on the blog illustrates the problems with using the terminology of soft law, with its debate over whether some hard law has softened and vice versa. This language ultimately obscures more than it clarifies. So I endorse Tomer Broude’s suggestion that the terminology of hard and soft may not be that useful. At bottom, what is important is the way some actors in the GMO story create “strategic inconsistency” by creating and invoking a wide array of differing norms, some of which clash. That discussion is central to the book, and is impressively detailed. But employing the language of soft law is not necessary to this discussion, and I think it would have been even stronger without it.

The complex and often antagonistic interaction of hard and soft law was clearly one of the most interesting points in the book for several of the commentators, as indeed it was for us. Our core argument here is that hard and soft law can serve not just as complements but also as “antagonists,” both in a conflict-of-laws sense and in a strategic sense whereby states (or non-state actors) deliberately use new legal provisions (typically soft law) in an attempt to undermine existing (mostly hard-law) provisions. This is an argument that appears in Chapter 4 of When Cooperation Fails, and we have since further formulated the theoretical argument, generated testable hypotheses, and examined the interaction of hard and soft law in several empirical cases in an article to appear this month in the Minnesota Law Review (Gregory C. Shaffer and Mark A. Pollack. “Hard Law vs. Soft Law: Alternatives, Complements and Antagonists in International Governance,” available here on SSRN). We would direct anyone interested in the question of hard and soft law to that article, but we address three issues here.

The Usefulness of the Terminology

First, Tomer concludes his excellent post by questioning the usefulness of “hard law/soft law” terminology. Here we think it helpful to distinguish an ex ante perspective regarding how parties design agreements, from an ex post one regarding how these agreements have effects. We adopt the Abbott-Snidal characterization of hard- and soft-law agreements which vary along a continuum in terms of the three characteristics of obligation, precision and delegation to third party dispute settlement. We agree with Tomer that any particular agreement (including WTO agreements) can have hard- and soft-law features. Indeed, part of the virtue of the Abbott-Snidal typology, often lost in subsequent applications, is the disaggregation of those terms into three distinct dimensions, such that an institution such as the WTO can be characterized relatively hard along the dimensions of obligation and delegation, with precision varying from article to article of the agreements in question.

From an ex ante institutional design perspective, Abbott and Snidal’s typology presents a useful framework for problematizing the choices that parties face in negotiating and entering into agreements that have varying degrees of obligation, precision and delegation. From an ex post socio-legal perspective, moreover, Abbott and Snidal’s scheme provides an intellectual starting point for asking whether and when harder- or softer-law regimes interact as alternatives (each with its own strengths and weaknesses), as complements (each elaborating and building on the other), or as antagonists (each potentially undercutting the substantive norms and procedural advantages of the other). We believe that all three types of interactions are possible, but the existing literature has largely ignored the third option of antagonism, which we explore in our book and article.

Has WTO Law Been Softened?

Second, Tomer questions whether WTO law has indeed been softened by its interaction with neighboring soft-law regimes in the case of the WTO SPS Agreement. We again elaborate our views in the article. To understand the potential impact of soft-law provisions from one international regime on the judicial application of relatively hard-law texts in another, we adopt a legal realist theory of judicial decision making, as opposed to a formalist one. The core legal realist claim is that, in practice, judges decide cases in response to factual context and not simply in response to formal rules and legal doctrine. Judges are viewed as situated decision makers who respond to disputes in light of particular social, political, and historical contexts which shape their views of the facts of a particular case. These contexts include the existence of neighboring soft-law regimes. That is why, in our view, actors strive to create them.

From a legal realist perspective, when WTO panels and the WTO Appellate Body interpret WTO texts, it is highly unlikely that they will formally declare that they are taking into account soft-law provisions and norms from a separate regime if they find that such provisions or norms are outside of their jurisdiction. Yet a legal realist does not look only at what judicial bodies say formally, but also at what they do in terms of judicial outcomes. In interpreting texts, panels and the Appellate Body always have some leeway. As legal realists, we predict that soft-law provisions can indirectly inform the interpretation and application of existing WTO texts and thus shape the outcome of WTO panel and Appellate Body decisions. From a rationalist perspective, panelists or Appellate Body members may wish to limit the tension between the WTO and other regimes in a fragmented international law system or seek to limit political backlash against their decisions that touch on environmental or social issues, the potential of which is reinforced and signaled by such other regimes. In doing so, panelists and the Appellate Body could facilitate greater acceptance of their decisions, reducing the severity of challenges to their legitimacy.

Alternatively, from a constructivist perspective, WTO jurists may be affected by and internalize principles and norms from neighboring regimes, and incorporate those principles and norms into their reading and application of WTO texts. Sometimes the judicial body may be rather explicit, as the Appellate Body was in the famous US-Shrimp-Turtle case, interpreting the meaning of WTO texts in a contemporary context that included soft-law environmental norms codified in treaties that it cited. At other times, the judicial body may be silent but still take account of those soft-law norms. We are not contending that WTO panels invariably change their decisions, directly or indirectly, to take account of soft-law norms in neighboring regimes. We rather contend that the opposing party will press them to do so, and in some contexts, it will be successful.

As Rebecca points out in her thoughtful post, we show how the WTO panel faced a number of interpretive choices in the GMO case, having distinct institutional implications, and thus ultimately affecting “who decides.” As a side note, we point out that our assessment of the governance tradeoffs in these institutional choices aligns us with the “global administrative law” perspective associated with Benedict Kingsbury and Richard Stewart at NYU.

Evolutionary vs Revolutionary Changes from Hard-Soft Law Interaction.

A third interesting challenge to our conceptualization of hard and soft law as antagonists comes from Margaret de Guzman. In a colloquium discussion of the book at Temple Law School, Meg questioned our distinction between the “complementary” and “antagonistic” use of hard and soft law. In our view, states and other actors in the GMO case, and in other cases such as intellectual property rights and the protection of cultural diversity, deliberately employ soft-law instruments in an effort to undermine or modify the interpretation of existing hard-law rules. This, we argue, is a distinctive use of soft law that is not captured in existing accounts, where soft law is depicted as elaborating, specifying, and “progressively developing” existing hard law. (Again, see our article for our typology of the existing literature as legal positivist, rational choice institutionalist, and constructivist).

Meg and others point out that much of the so-called “progressive development” of international law, and especially customary international law, begins with states undertaking practices or putting forward legal interpretations that to some extent are at odds with existing understandings of law. Of course, to the extent that other states accept these actions and the legal understandings behind them, customary international law “progressively develops” (although the use of the term “progressive” is problematic to many). The point is that some degree of “antagonism” seems inherent in this process.

This contention calls to mind Larry Helfer’s excellent discussion of what he calls “counter-regime norms.” Like us, Larry believes that states frequently put forward soft-law proclamations designed to weaken existing laws. In doing so, Larry distinguishes between “evolutionary” and “revolutionary” counter-regime norms. As he writes:

“How such challenges unfold depends in part on the degree of dissonance between established and emerging legal prescriptions. Disadvantaged actors may articulate counterregime norms that only incrementally modify existing rules but leave uncontested the broader principles from which those rules emanate. A state or an NGO might, for example, object to treaty obligations that require recognition of specific types of patentable subject matter or that narrow the exceptions to a patentee’s exclusive rights without questioning the broader innovation objectives that a patent system serves. In other instances, counterregime norms may be revolutionary rather than evolutionary, posing more fundamental challenges to underlying principles. Actors who question the economic and social benefits of granting intellectual property rights to foreign creators and inventors are asserting norms that fall into this latter category.” (Laurence R. Helfer, “Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking,” Yale Journal of International Law, Vol. 29, No. 1, at pp. 1-83, at 14-15).

In our view, most of the existing literature on hard and soft law presupposes an “evolutionary” relationship between hard and soft law, with the latter elaborating and filling in the blanks of the former. This is indeed often the case, we argue. However, where states have sharply differing views and multiple fora in which to express them, soft-law instruments may indeed pose “fundamental challenges” to the “underlying principles” of existing international law. There is of course not a clear line between “complementary” and “antagonistic” legal norms (to use our terms) – or “evolutionary” and “revolutionary” counter-regime norms (to use Larry’s terms). Yet we believe that, under certain conditions, the latter are more common and more important than the existing literature suggests, and can lead to stalemates that are quite persistent over time.

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.

[Tomer Broude is a Senior Lecturer, Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem; the following post continues our conversation on Shaffer and Pollack's <em>When Cooperation Fails</em>]

Mark Pollack and Greg Shaffer well deserve the praise that the previous commentators have given them for their study of the transatlantic law and politics of GMOs, “When Cooperation Fails”. Empirically, the book is a model of qualitative research, in some parts following the lines of Greg’s superb <a href=”http://www.amazon.co.uk/Defending-Interests-Public-Private-Partnerships-Litigation/dp/0815778317″>Defending Interests</a>. The theoretical dimensions of the book masterfully bridge between different IR and IL discourses, especially the legalistic problem of regime fragmentation and the political question of regulatory cooperation. Most importantly, the authors are not wedded to a particular theoretical framework; they use the full toolbox, not just a hammer.

For non-specialists, one of the most interesting issues dealt with in the book (in chapters 4 and 5) is the interaction between ‘hard’ and ‘soft’ law. In theory, Greg and Mark eschew the binary connotations of these terms, arguing instead that hard and soft law form a continuum. Nevertheless, in practice they do tend to treat WTO law as remarkably hard, in contrast to the ‘soft’ law OECD and Codex Alimentarius Commission’s (CAC) normative outputs, and this colors their analysis. In this respect, I prefer their theoretical statements: WTO law is not as hard as it appears; in many areas, it is a bit like a medium-boiled egg (GM or otherwise), with a firm white but runny yolk. Let me focus on this point here.

In dynamic terms, Mark and Greg convincingly show that the soft law of the Codex Alimentarius Commission has been hardened through direct incorporation of standards into the WTO’s SPS agreement and through WTO jurisprudence. I think that this is a relatively uncontroversial 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. There are a few problems in this argument.

First, was/is relevant WTO law ‘hard’ to begin with? The SPS is undoubtedly a ‘hard’ law instrument, but it has significant islands of ambiguity, constructive and otherwise. The GMO panel may have leveraged the imprecision of the SPS, but it did not invent it, the parties did.

Second, the authors relate to the GMO panel’s emphasis on procedural and formal questions, with the implication that by avoiding making rulings on the substance, the panel softened WTO law relating to GMOs – seemingly a classical case of issue avoidance through procedure. But while I would agree that the panel’s formal/procedural approach is a flight from politics, I am not sure that it is a flight from law; in other words, it is less than clear that if the panel had overcome the temptation to focus on procedural questions, it would have found solid and precise (or ‘hard’) substantive law to apply.

Third, even if the GMO dispute shows a ‘softer’ side of WTO law, this specific ‘softness’ does not seem to have had any special impacts on the regime as a whole. In this context, it is particularly interesting that the US and EU chose not to appeal the panel report, relegating it to that category of WTO jurisprudence that has much lesser effect on the development of WTO law. In other words, the international legal expression of the GMO dispute has, at least, so far, ended with a (1300 page long) whimper, rather than with a bang. In any case, I would at least like to think that the GMO panel is far from a representative example of WTO jurisprudence, in more ways than one.

Fourth, it is important to note that even if the GMO panel report reflects any ‘softening’ of WTO law, it is not the result of an interaction with soft law, but an endogenous weakness of WTO law itself, in a particular context.

Overall, the analysis left me with the feeling that the distinction and terminology of ‘hard’ and ‘soft’ law, although interesting in theory, might not be as useful as we sometimes like to think.

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.

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.

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.

Tommorrow, Opinio Juris is pleased to host a one-day discussion of the new book by Gregory Shaffer and Mark Pollack, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford, 2009).  Sungjoon Cho and Rebecca Bratspies will join us with guest commentary.  For those interested in joining what promises to be a great discussion, here’s the abstract:

The transatlantic dispute over genetically modified organisms (GMOs) has brought into conflict the United States and the European Union, two long-time allies and economically interdependent democracies with a long record of successful cooperation. Yet the dispute – pitting a largely acceptant US against an EU deeply suspicious of GMOs – has developed into one of the most bitter and intractable transatlantic and global conflicts, resisting efforts at negotiated resolution and resulting in a bitterly contested legal battle before the World Trade Organization.

Professors Pollack and Shaffer investigate the obstacles to reconciling regulatory differences among nations through international cooperation, through the lens of the GMO dispute. The book addresses the dynamic interactions of domestic law and politics, transnational networks, international regimes, and global markets, through a theoretically grounded and empirically comprehensive analysis of the governance of GM foods and crops. They demonstrate that the deeply politicized, entrenched and path-dependent nature of the regulation of GMOs in the US and the EU has fundamentally shaped negotiations and decision-making at the international level, limiting the prospects for deliberation and providing incentives for both sides to engage in hard bargaining and to “shop” for favorable international forums. They then assess the impacts, and the limits, of international pressures on domestic US and European law, politics and business practice, which have remained strikingly resistant to change.

International cooperation in areas like GMO regulation, the authors conclude, must overcome multiple obstacles, legal and political, domestic and international. Any effective response to this persistent dispute, they argue, must recognize both the obstacles to successful cooperation, and the options that remain for each side when cooperation fails.