The new politics of regulatory cooperation: the case of food safety.

Author:Drezner, Daniel
Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law
 
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The panel was convened at 9:00 a.m., Friday, April 11, by its moderator, Professor Kal Raustiala of UCLA Law School, who introduced the panelists: Professor Daniel Drezner of the Fletcher School of Law and Diplomacy; Professor Joanne Scott of the University College London; and Professor Marsha Echols of Howard University Law School.

INTRODUCTORY REMARKS BY KAL RAUSTIALA *

In the post-war era we have seen several major changes in the international system. One obvious and important change is an enormous increase in trade and trade institutions. Another related change, which dates from before the post-war period, but expanded during it, has been the rise of domestic regulatory rules of all sorts. We see this in the United States dating back to the 19th century, and really accelerating in the 20th century. This pattern is true elsewhere as well. The result has been dramatic growth in regulatory rules and institutions. In many respects it is a regulatory world that we now live in.

The immediate question that we address on this panel today is food safety. But the question of food safety is not just about food; it raises a host of broader questions that transcend food regulation. These include: how do domestic regulations interact with regulations from other nations in an interdependent world? Are domestic regulations simply trade barriers to be progressively decreased in some way? Or are they manifestations of unique national attributes that need to be preserved and protected? How do we work out these clashes in practice and theory, normatively, etc.? These questions are at the heart of the contemporary debate over food safety, and we have several terrific experts on this panel to address them.

REMARKS BY DANIEL DREZNER ([dagger])

Regulations to some extent are residual barriers to integration in the global economy. This is particularly true in the agricultural sector, in the food sector, which even now is being liberalized, but also it is cheap protection for the service sector. When the service sectors were created, there was no contest to place tariffs because no one thought they were tradeable. As a result, as globalization ensues, you are seeing more and more trade in services, and the barrier to trade is not any kind of tariff or any kind of non-tariff barrier, it is the regular domestic regulation in the service sectors.

The question posed in the panel summary is: are national regulations trade barriers bulwarks against dangerous imports, or expressions of national values? As a political scientist, the answer is they are all three. Sometimes they are a little more one as opposed to a little more of the other. There is an excellent article that a political scientist named Daniel Cuneho wrote, looking at expressions of regulatory standards as possible trade barriers. One of the things that he pointed out was that over time it has become more and more ludicrous for legislators to say "well, let's apply a tariff to a product," because that is so obviously protectionist that consumers, who want to have relatively low prices and cheap goods, will immediately detect it. As a result, they wind up coming up with what is called "optimal obfuscation"--that is, policies that can be interpreted in multiple ways.

A tariff is pretty obviously a protection for a domestic industry. On the other hand, imposing regulatory standards is much more ambiguous. Sometimes there are very valid reasons for imposing relatively strict regulatory standards, but in other cases sometimes it is a stalking horse for protectionism. We have seen that somewhat in the last year with the rash of safety scares regarding Chinese products, particularly pharmaceuticals. On the one hand, there were very justifiable health and safety concerns. On the other hand, it was awfully nice of domestic drug manufacturers to consistently, repeatedly point these facts out to the U.S. Food and Drug Administration (FDA) and other salient regulatory agencies. Do we believe that there was no self-interest in that whatsoever?

So, given this importance of regulatory politics, what is the nature of how global regulatory regimes are created? Fortunately, I have an answer. I wrote a book that came out last year called All Politics Is Global explaining international regulatory regimes. I took a look at a variety of regulatory issues, not just focusing on food or health and safety. As an international relations theorist, my basic argument is that globalization does not change the way international relations functions. It is still a power-based world out there. It is just that how you define power changes slightly: in this world, what determines relative power in terms of determining international regulatory regimes is domestic market size. Large markets have a gravitational effect on external states. That is, if large markets create regulatory standards, other states and other producers that have to export into those countries will, by hook or by crook, change their regulatory practices or change their production practices to accord with those regulatory standards. Given the current distribution of power in the way regulations are written, the situation during the current era of globalization has been a bi-polar world. You have the United States and you have the European Union. Simply put, if the United States and the European Union agree on common regulatory standards, you are going to have relatively effective global governance. If they do not, you will not. And all of the other states, all of the non-governmental organizations, all of the international lawyers in the world will not make a difference unless you have these two large markets agree. You can see this in recent examples of health and regulatory issues. I will mention three examples, two of which are clearly on topic and one which is slightly off topic, but is still interesting.

The first example is the treatment of genetically modified organisms (GMOs). This is an issue where the United States and the European Union do not see eye-to-eye at all. They have promulgated increasingly divergent approaches to regulation. The U.S. position is that you should treat GMOs just as you treat any other kind of food, that the science suggests that the way GMOs are created does not create any unique health or safety or biodiversity concerns, and, therefore, there should be no discrimination between GM products and any other kind of food product. The EU position (not initially, but after a series of food safety scares in the late 1980s and early 1990s) is now based on the "precautionary principle," which says that something is not safe unless you can absolutely determine and prove that it is safe. As a result, there has been discrimination about whether GM products can be imported. If you take a look at the state of play, both great powers have tried to take the issue to the international regimes that are more favorable to them. The United States has pursued the World Trade Organization (WTO) approach, which backs up the U.S. position on "sound science," in part because the United States also got the Codex Alimentarius Commission to agree that there were no real health or safety problems with GM products. The European Union, on the other hand, managed to get the precautionary principle enshrined through the Cartagena Protocol on Biosafety.

The result is basically a stalemate in terms of trying to resolve these issues at the global governance level. And what is happening at the national level is that both the United States and the European Union are trying to export their regulatory standards to other countries. The countries that are...

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