Firm Whites and Runny Yolks in WTO Law

[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 When Cooperation Fails]

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 Defending Interests. 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.