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Dec 11, 2012 (4 years and 8 months ago)

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The Possibility of International Agreements Concerning Genetically Modified Organisms
in

the European Union

by

Jennifer R. Fairbrother



A PROJECT

submitted to

Oregon State University

University Honors College



in partial fulfillment of

the requirements f
or the

degree of


Honors Baccalaureate of Science in Philosophy (Honors Associate)



Presented May 23, 2007

Commencement June 2007



AN ABSTRACT OF THE THESIS OF

Jennifer R. Fairbrother

for the degree of
Honors Baccalaureate of Science in Philosophy

present
ed on
May 23, 2007
. Title:
The Possibility of International Agreements Concerning
Genetically Modified Organisms in the European Union
.

Abstract approved:

Brent Steel

As genetically modified products come under greater production, tensions surrounding
the

potential benefits and harms of the technology have appeared in divergent policy
between the European Union (EU) and certain member states. The purpose of this thesis
is to consider whether some type of international law, also called an environmental
regi
me, can be formed that centers on genetically modified organisms (GMOs)
,

which

recognizes the rights of states
, specifically EU member states,

to enact bans or measures
that limit the use of GMOs if
there exists a potential

human or environmental threat. T
h
is

thesis examines the background and general issues surrounding GMOs, environmental
regime theory and significant actors in regime formation, the history and current situation
of GMOs in the EU, other actors influencing the present circumstances, and wha
t
environmental regime formation concerning GMOs might look like
.

It concludes that an
agreement at the minilateral (regional) scale would best address t
he specific situation in
the EU, which
may provide a platform for
future
multinational agreements that
consider
other issues of GMOs.


Key Words:

Genetically Modified Organisms (GMOs), environmental regime,
actors
European Union (EU)


Corresponding e
-
mail address:

fairbroj@onid.orst.edu



©Copyright by Jennifer R. Fairbrother

May 23, 2007

All Rights Reserved






The Possibility of International Agreements Concerning Genetically Modified Organisms
in the European Union

by

Jennifer R. Fairbrother



A PROJECT

submitted to

Oregon State University

University Honors College



in partial fulfillment of

the requireme
nts for the

degree of


Honors Baccalaureate of Science in Philosophy (Honors Associate)



Presented May 23, 2007

Commencement June 2007




Honors Baccalaureate of Science in Philosophy

project of
Jennifer R. Fairbrother

presented on
May 23, 2007
.


APPROVED:





Mentor, representing Political Science





Committee Member, representing Phil
o
sophy





Committee Member, representing
the community, ecology





Dean, University Honors College






I understand that my project will become part of the permanent
collection of Oregon State
University, University Honors College. My signature below authorizes release of my project to
any reader upon request.





Jennifer R. Fairbrother
, Author




Acknowledgments


I would like to thank my mentor, Dr. Brent Steel, for
his willingness to guide me through
the process of independent learning and synthesis. Before beginning, I had little
knowledge of environmental
regime theory
, but Dr. Steel pointed me in the right
direction and let me find my way.
I am also grateful for h
is advice

and encourage
ment

as
I

pursue my desires to continue my education at the graduate level in a public policy
program. Also, I would like to thank my other committee members: Dr. Kathleen D.
Moore and Jeffery Mitchell. Before attending Oregon State
University, I had read several
of

Dr. Moore’s

works

and found a personal connection with her writing on environmental
philosophy. I have had the honor of having Dr. Moore as a teacher,
and continue to be
inspired by her work and her person. Mr. Mitchell an
d I have had a long relationship. He
introduced me to the field of ecology and the world of scientific enquiry and fieldwork.
His passion for sustained, healthy relationships between communit
ies

and ecosystem
s

has
been the catalyst for my desire to pursue
the connection between the environment and
public policy. This thesis is grounded in the knowledge that he provided me long ago.
Special thanks go

to Sharon Sternadel, my best friend and trusty editor. She has been
editing my papers since high school, and
dedicatedly slogged through fifty pages of tense
changes and
passive sentence

mistakes of this thesis. Finally, thanks to my friends, most
of whom I have known more than half of my life, and my family. They have made life
what it is: wonderful.





TABLE OF

CONTENTS

Page

1.

Introduction

................................
................................
................................
................
1

2.

Background

................................
................................
................................
................
3

3.

Issues Concerning GMOs

................................
................................
..........................
6

a.

GMOs and Human

................................
................................
............................
6

b.

GMOs and the Environment

................................
................................
.............
8

4.

Environmental Regimes, Their Formation,

Theory,

Influencing Actors, and

Success

................................
................................
................................
.......................
13

a.

Regime Theory
................................
................................
................................
..
16

b.

Actors in Regime Formation

................................
................................
.............
1
9

c.

Regime Suc
cess

................................
................................
................................
2
4

5.

EU GMO Polic
y and Member State Divergence

................................
.......................
2
8

6.

Other Influencing Actors

................................
................................
...........................
33

a.

United States

................................
................................
................................
.....
33

b.

World Trade Organ
ization

................................
................................
................
3
4

c.

Non
-
governmental O
rganization and Green Parties

................................
.........
3
7

7.

The Possibility of Environmental Regime Formation by EU
Member States
Concernin
g GMOs

................................
................................
................................
.....
40

8.

Conclusion

................................
................................
................................
.................
47

Works Cited

................................
................................
................................
......................
50


1

The Possibility of International Agreements Concerning Genetically Modified Organisms
in the European Union




INTRODUCTION




As a relatively new technology, genetically modified organisms (GMOs) have
become controve
rsial, especially as governments work to find the best regulatory policy
to protect citizens and the environment while at the same time enjoying as many benefits
of GMOs as possible. The result of this newer technology is controversy over the use of
such o
rganisms as many of the benefits and consequences may yet be unknown.

This debate has manifested itself politically in the divergent regulatory policies
between countries, specifically the United States, the European Union (EU), and EU
member states. With
in Europe, many member states of the EU have created
deviating
GMO regulatory polic
ies

from that of the EU
. This

has
resulted in
an

unresolved conflict
between the EU and
the

member states
concerning the

implement
ation of

safeguard

measures regarding GMOs.


The focus of this
thesis

is to examine what

international agreements, more
specifically environmental regimes
,

concerning GMOs would look like propelled by the

current

conflict

between the EU and EU member states

over GMO regulatory policies
.
This topic
is of importance
since it addresses a broad range of issues from a regional to
global scale concerning a new technology

in which clear international agreements
concerning its use and regulation have yet to be established.

International regimes are defined
by Porter, Brown, and Chasek in
Global
Environmental
Politics

as “a system of norms and rules that are specified by a


2

multilateral agreement among the relevant states to regulate national actions on a specific
issue or set of interrelated issues
” (13). Leg
ally binding regimes often take the form of
“treaties, conventions, protocols, covenants, compacts, agreements, charters, and acts”
(Barrett 133). The aim of this thesis will be to explore what a regime may look like
within the general context of GMOs and
specifically
the EU
.

To begin, the human and environmental benefits and consequences

of GMOs

along with the ethical implications that arise
will

be considered separately from the
context of
international agreements, specifically
environmental regime format
ion.
Conversely, environmental regime formation will be addressed theoretically without
incorporating the specific issue

of GMOs
. Then, an analysis
will be
made

of current
European
Union

GMO regulatory policy
as well as member state divergence from the
pol
icy.

The role of other influencing actors on the current situation will be appraised, and
finally an examination of the possibility of environmental regime formation concerning
GMOs stemming from the schism of EU member state policy from that of the EU

wil
l be
analyzed
.



3

BACKGROUND



Humans have historically made use of genetic modification to domestic crops and
animals for easier and increased production as well as developing the use of various
microbes in processes such as fermentation. These developments

have evolved from a
basic understanding of her
edity and artificial selection and t
hrough the use of cross
breeding and observation, organisms have been purposefully genetically changed for
human use.
Broadly, the definition of genetic modification (GM) (a
lso called genetic
engineering) includes selection for genes through conventional breeding techniques.
However, the term has been redefined with the advent of modern methods for artificial
selection. Genetic modification in the narrow sense is defined as “
c
hanges in the genetic
constitution of cells (apart from selective breeding) resulting from the introduction or
elimination of specific genes through mode
rn molecular biology techniques” (Zaid).

Now, with an advanced knowledge of
GM

technology, organisms
can be genetically
modified in specific ways without the amount of time traditional cross breeding requires.

Conventional breeding and any resulting genetic modification differ from the new
forms of GM technology or genetic engineering. Whereas conventio
nal breeding requires
that the two organisms being bred must be of the same species (able to interbreed and
produce offspring), genetic engineering allows for the genes of
one

species to be
incorporated into the genome of a differing species. Also, convent
ional breeding
techniques involve the total genomes of th
e two interbreeding individuals whereas
g
enetic engineering allows for only those genes which are desired to be incorporated and
“is an advance, therefore, because the potential gene pool for selecti
ng desirable genes is


4

massively increased, and the desired outcome can be arrived at more quickly and
efficiently” (Nottingham 4
; Parekh 3
).


Various definitions of genetic modification exist. One is that ge
netic modification
is any human
-
induced genetic “
improvement” of an organism (Nottingham 3). This
definition encompasses traditional cross
-
bre
e
ding and artificial selection as well as
modern technologies and is generally used by proponents of genetic modification and
biotechnology. A second definition wh
ich is more commonly used and associated with
opponents of biotechnology is the definition of genetic modification that applies
specifically to genetic engineering (Nottingham 3). The
Glossary of Biotechnology and
Genetic Engineering
parallels the second
more common meaning and defines a
genetically modified organism (GMO) as “an organism that has been modified by the
application of recombinant DNA technology” (Zaid 115). This is the definition that will
be used throughout the rest of this
thesis
.


Field t
esting of GMOs began in 1987, but they were not released for commercial
use until 1996. By the year 2000, there were 44 million hectares of GM crops in
commercial production located mainly in developed states, and at th
at

time, ninety
-
four
percent of this
production was produced by the biotechnology firm Monsanto (Mills
339). Over half of all GM crops are GM soybean while the remaining are mainly ma
i
ze,
cotton rape, and oilseed rape with the majority of GM crops engineered for “herbicide
resistance” (Nottin
gham 2
;
Skinner

352).


While a brief overview and history of GMOs is important for understanding, the
next section will

more thoroughly

investigate the human and environmental issues that
are of
general
concern.

From a human standpoint, advantages such as
solutions to food


5

scarcity, malnutrition, and
agricultural production costs

will be discussed along with
disadvantages like food allergens and intellectual property rights
that lead

to greater
inequity between developed and underdeveloped states. Environme
ntal advantages of
GMOs will also be examined.
Mainly, GMOs provide
the possibility of making
agricultural crop pro
duction more ecologically sound. Conversely, disadvantages will
address problems of GMOs based on ecological theory including genetic drift a
nd loss of
biodiversity.



6

ISSUES

CONCERNING GMOs



GMOs and Humans



In order to keep up with the exponential population growth of humans, it is
believed that there will have to be “a 60 percent increase in the food supply” to feed the
world in the future
(
Skinner

1). However, crop and agricultural areas on the planet can
not proportionally increase to meet this enlarged need for lack of space. Other consumer
demands will also make such a goal difficult as more countries,
like

India and China,
become indust
rialized and increase the amount of food they consume from higher trophic
levels. It is through “increases in productivity per unit area of land and unit volume
water” that the future food supply needs of the human population can be met

(Skinner 2).
Howeve
r,

lack of land availability and water sources are already limiting resources in
many regions and will continue to become scarcer as the world’s population increases
making the needed increases in food production even more difficult (
Gao 297
).


Proponents

of GMOs argue that
the

technology offers a solution to these issues of
food security, human health, and nutrition.
GMOs can do this by increasing crop yields,
that is, increase the amount of food produced per unit area. This is possible because crops
can
be genetically modified
for pest resistance, drought tolerance, or increased nutrient
content. Genetic modifications can result in higher yields and decrease the need for water
and other resource inputs while increasing the nutritional content of the produ
ct.

In this way, human rights play a role in the GMO debate as the right to adequate
food is stipulated within the
Universal
Declaration of Human Rights. This brings to
bear

other ethical questions about food distribution and the economic impacts patentin
g gene


7

technology has for corporations, the general public, and underdeveloped states
(FAO

5).
The Food and Agricultural Organization (FAO) of the United Nations (UN)
cites

equity
as a central ethical issue in the discussion of GMOs (FAO 16).
Issues of equ
ity are

compounded by questions about the effect that intellectual property rights and patenting
of GM technology may have on human equity when
these

rights restrict the development
of food sources that can overcome local, natural limitations in developing

countries. At
the same time, patenting has led to higher economic investment in the biotechnology
industry than would have otherwise been expected (Mills 329). In this respect, the FAO
has reported that “the current situation [of GMOs] therefore tends to
widen the gap
between richer and poorer societies” (FAO

10).
More abstract are questions about how
future generations should factor into contemporary debates and policy creation
surrounding GMOs and within environmental regime formation in general.

GMOs a
re also considered a
n effective

way to reduce the production costs of
crops
.

Al
though
reduced production costs

may be affected by corporate patents on GM
technology “the consensus is now that these varieties have lowered the costs of pest
control [in North

America]” (FAO 12). Similarly, food processors and retailers view
GMOs as a
prospective

way to reduce costs. For example, GM produce has been
engineered for longer life after picking or delayed ripening for longer shelf life
as well as
reducing

aesthetic
problems caused during harvesting. However, this portion of the food
supply chain is especially
subject

to

consumer approval and lack thereof may lead to
processors and retailers refusing to incorporate GMOs into their business, which in turn
influences th
e choices of farmers and growers (FAO 11, 12).



8

The risks
of GMOs
to humans are also of great concern, which is
chiefly

expressed by consumer power in the market system.
I
t is possible that

these

concerns are
overstated

and not as
pertinent

as environmental

and ethical issues surrounding GMOs.
For instance, when gene
s

from Brazil nuts w
ere

incorporated into the genome of a
soybean, consumption of the soybean resulted in allergic reactions similar to those
experienced from consumption of Brazil nuts. The poss
ibility for allergic reactions
occurring in this manner is a valid concern, but perhaps more easily solved than many
other impacts of GMOs

by

not
incorporating
genes from organisms that cause known
allergic reactions or through the proper labeling of consu
mable products
.

Moreover
,
genetic engineering could possibly eliminate existing allergen
s from food products
(Laing 354;

FAO 10, 17).


Consumer fears of negative health affects have led to many recalls of GM foods
and seed
s

though “there has not yet been a

confirmed case of a person suffering any ill
effects from consuming food derived from genetically modified plants” (Laing 355).
Worry over the possibility of GM crops that have not been approved for human
consumption entering the human food supply has occ
urred in the past and continues to be
a valid
concern

as a larger number of GM crops are used to produce non
-
food products
,

like

pharmaceuticals
,

or are engineered to perform bioremediation
,

such as removing
heavy metals from polluted soils (Laing 355).




GMOs and the Environment



Environmental concern surrounding the use of GMOs is viewed as more complex
scientifically than the aspect of food safety. Whereas laboratory testing can better


9

determine the effects of GMO consumption, environmental effects of
GMOs
are

harder
to study as natural systems are difficult to replicate in a laboratory setting,
and

releasing a
GMO into the environment for study before knowing the risks associated is dangerous.
An ongoing debate questions whether knowing the expected ph
enotype resulting from a
known genotype can accurately predict the ecological function and environmental impact
of an organism (Fox 78).

T
heories from the field of ecology suggest that GMOs will most likely have their
greatest impact at the community and e
cosystem level. An ecological community is
defined as “an association of interacting species living in a particular area” and an
ecosystem adds the dimension of abiotic factors (
geology, climate, water, etc.
) to this
definition (Molles 553). The impact of
GMOs at this
level may be indirect, such as
changing an aspect of a community food
-
web

that

resul
ts

in a causal effect through the
web

s trophic levels.

In other aspects, a GMO may alter or change a species niche. Generally, a niche is
defined as “the env
ironmental factors that influence the growth, survival, and
reproduction of a species” (Molles 556). More specifically, ecological theory breaks
niches into two parts: realized and fundamental. The fundamental niche of a species is
determined by the physic
al conditions under which a species may live without
considering interaction
s

with other organisms. A realized niche takes into account the
influences of other organisms
through

competition, predation, mutualism, and disease
which
constrain

a species


envi
ronment (Molles 307).

A change in the niche of a species
caused by a GMO
will result in a change in the
structure of the species


community or may have an impact on biodiversity. These


10

outcomes may occur in several ways. First, genetic modification may ch
ange a species


ability to utilize resources

by making it
more efficient. Within intraspecific competition,
this ability may cause a GMO to out
-
compete the parent species which may lead to
extinction of the parent population within that community. Similarl
y, in aspects of
interspecific competition, genetic modification may allo
w

species to out
-
compete

other
species and result in a reduction of their realized niches. A change in the fundamental
niche of a species may occur if a genetic modification allows an

organism to utilize
resources outside of the parent species’ niche. This could lead to the dispersal of the GM
species beyond that of the parent species’ range. Changes in the fundamental niche are
associated with high ecological risk as a new area in whi
ch a GMO has moved may not
have the normal biological controls making it possible for the GM species to become
invasive (Nottingham 12, 15).

Gene flow or genetic drift from GMOs to native species is of serious concern as a
possibl
e

impact to genetic and bi
odiversity. Genetic crossing between GM crops and
native relatives could result in a loss of genetic diversity in the native species, though
arguably this already occurs between cultivated crop varieties and native relatives. What
differentiates genetic fl
ow from traditional crops and that from GM varieties is that the
genes selected for in genetic engineering are often associated with higher levels of fitness
which may push a native species to local or possibly worldwide extinction.


As with

other areas, G
MOs may have both positive and negative environmental
impacts. Proponents of their use cite possible positive environmental effects, mainly
through agriculture. It is suggested that GM crops

may

result in the use of conservation
tillage or low/no
-
till unli
ke their parent crop

variety

thus

effectively reducing

the amount


11

of soil loss from wind and runoff. Similarly, if crops can be genetically modified for
greater drought tolerance, water use in certain agricultural practices could decrease.
Decreases in pes
ticides and herbicides are possible with GMOs that
are
modified to
produce
such chemicals themselves as in the case of Bacillus thuringiensis (Bt)
crops

which
produce

the Bt compound, a pesticide harmless to humans
. Genetic modification
may help preserve t
he “genetic diversity of highly inbred domestic varieties of crops” as
well as increasing their resistance to disease and
increasing vitality

(Fox 79
; Stewart
218
).


Opponents argue that the benefits of GMOs do not outweigh the
environmental
risks and neg
ative impacts that may occur. Concerns center o
n

topics such as weeds
hybridizing with GMO crops to become super weeds
, and

viruses and pests develop
ing

resistance
to pesticides
that are continually
produced by entire crops
(Fox 77).


GM plants that are mo
dified to produce their own pesticides may harm non
-
target
species. The most cited case of this is the high rates of mortality for monarch butterfly
larvae that were exposed to Bt toxin in maize pollen which had drifted onto the food
source of the larvae (
Skinner

357;

FAO 21). While other studies have argued that the loss
of monarch larvae through this method is “
negligible,
” the example may be used to
illustrate that beneficial species
which
are important to both agriculture and ecosystem
functions may be
negatively impacted by GMOs, perhaps enough to greatly impact the
functioning
and stability of
agricultural and ecological

systems
(
Skinner

358).
Bio
magnification

of toxins from GM crops may also occur if a pest feeding on
a

toxin
producing plant is eaten
by a predator or parasites which then ingest the toxin. This chain


12

may continue throughout th
e food
-
web with the adverse affect of

greater

toxin
concentrations
in

higher trophic levels (FAO 12
).



Generally, GMOs and their related technology provide many

e
conomic, ethical,
and environmental

benefits. At the same time, they raise serious concerns about their
possible dangers in the same areas. This section was intended to provide a brief overview
of the major topics
that

are currently being debated by consum
ers,
states
, businesses, and
scientists in order to place these conversations into the general context of GMOs. The
following section will similarly provide a general framework regarding the formation of
international agreements, in particular environmenta
l regimes.
This will include an
outline of regime formation, theory, and aspects that influence regime success
.
The

abstract theory

presented in the following section

will be

appl
ied

later to

the specific
situation of GMOs in the EU
and in an

analy
sis

of
t
he possibility of regime formation.




13

ENVIRONMENTAL REGIMES, THEIR FORMATION,

THEORY,
INFLUENCING
ACTORS, AND
SUCCESS




Regime formation takes place through
multilateral negotiations

that are
generally

initiated when current paradigms become undesirable,
often from a monetary outlook as
continued practices under the paradigm may result in high costs in the future.
Accordingly, regime formations and their later success depend on each member believing
that they will receive some gain or positive benefit from

the outcome of the regime

(Porter 20).


E
nvironmental

regime formation occurs due to a multitude of reasons at both the
domestic and international level
s and

can be seen as a response to the change, or need for
change, within the dominant paradigm. A para
digm is “a set of beliefs, ideas, and values
from which public policies and whole systems of behavior flow logically” (
Porter

20)
.

A
change in the paradigm is referred to as a

paradigm shift

(
Porter 20
)
.


In many contemporary societies, the dominant para
digm concerning the
environment is termed the “exclusionist paradigm”

or “frontier economics”

and is
strongly tied to economic systems. It is referred to as
exclusionist
since

it

is based on a
belief that
natural resources

are unlimited and
at the dispo
sal

of humans, effectively
excluding the consideration of the effects economic activities will have on the
environment.

Capitalism, based on neoclassic economics, best encompasses the values of
the exclusionist paradigm with the beliefs that the “free market
will always maximize
social welfare” and that there are infinite resources and methods to dispose of used
resources (
P
orter

21).
Neoclassical economic
theory
deems

resource depletion impossible
with some advocates emphasizing the belief that science, with
the help of the market, will


14

always discover new technology to utilize resources and dispose of the waste. This
does
not consider

waste a factor
in the decision making process. The system ultimately
“considers the environment to be irrelevant to economics”

(
P
orter

21).


The contemporary dominant paradigm has come under examination at the
national and international level
s
, especially in the last fifty years. A strong opposition
began in the United States in the 1960s

that led to creation of

the National Envi
ronmental
Policy Act (NEPA) in 1969 in which the support of “international cooperation”
concerning the environment was endorsed at the national level. Opposition to the
paradigm also caused a growth of the scientific and intellectual communit
ies

at an
inte
rnational level resulting from a belief in the need for

a

more ecologically sustainable
paradigm and corresponding policies (
Porter

23).


Alternative paradigms such as sustainable development and “ecological
modernization”
have arisen to provide an evaluat
ion of current theory (Gottweis 232).

Sustainable development recognizes key aspects of the
human
-
environment

relationship

that are currently ignored by the existing exclusionist paradigm such as the finite nature
of resources, the belief that current tren
ds in consumption will destroy the world, and in
“development that is consistent with future as well as present needs” (
Porter

23).
To
achieve the aspects of sustainable development in a paradigm

means decreasing
consumption
,

increasing the use of sustaina
ble practices
, and

needing
equity between
nations, within societies
,

and intergenerationa
l
l
y

(the idea that future generations have an
equal right to the world and its resources) (
Porter

24).
R
esource valuation and
“environmental accounting” for
things lik
e

ecosystem services will

also

work to achieve
these

principles concerning the relationship between the environment and economic


15

practices (
Porter

24).

Although,

this alternative paradigm suffers from a lack of
consensus as to how sustainable development s
hould be defined so that it may work
usefully in regime formation and policy analysis. Current definitions “involve a category
mistake
[of]

identify
[ing]

the determinants of well
-
being with the constituents of well
-
being (for ex
ample, welfare, freedom, etc
.)”
(Guo 87).


Ecosystem modernization perceives that

the current

economic system and polic
y

can be restructured to be

more ecologically sound while still maintaining the aim of
modernization and the preservation of “the sustenance base” (Gottweis 232).

This strategy emphasizes that economic structural change must be founded on the use of
renewable resources and a consideration of waste. Policy would have to become
preventative instead of the two extremes of precaution and reaction. Economic policy
making

would have to take into account the ecological expenses of industry and
economic decisions (Gottweis 233).


Other factors leading to the increase in environmental regime formation during
the second half of the twentieth century
include

“an increase in the

scale of human
activity, an accumulation of previous environmental misdeeds, an increase in incomes in
the industrialized countries, a change in preference, and a more fra
gmented geo
-
political
landscape

(Barrett 136). Also contributing to this is the for
mation of “multilate
ral
institutions” such as the UN

or the Council of Europe which often facilitate regime
formation (Barrett 135).






16

Regime Theory


Regime t
heory addresses regimes and their approaches as generally falling into
one of several categories

including: structural (hegemonic) power, game theory,
institutional bargaining, and epistemic communities model (
P
orter

16). The structural or
hegemonic power theory approach is one in which stronger states dominate the process of
regime formation. This r
esults in the possibility of strong states dominating or coercing
weaker states. Alternatively, such a model is problematic if a strong state
does not
participate
.
When a strong state is present, they may

use military force or threat

to be
coercive
. Howeve
r, structural power theories can encompass regimes set up in the interest
of the “public good” in which all participating states are able to benefit (
P
orter

17).


Game theory approaches
emphasize

that small groups or coalitions of states are
more successf
ul in regime formation. Porter, Brown and Chasek define the game theory
approach as one in which “bargaining situations are distinguished by the number of
parties involved, the nature of the conflict, and an assumption that the actors are rational
(they ca
nnot pursue their own interests independently of the choices of other actors)”
(
P
orter

17). Greater success results if a fewer number of bargaining parties are involved
since

it allows for each actor to better comprehend the methods of the others. Because
of
the centralized power offered through coalitions,
coalition

members are able to exert
power over a large number of individual actors. However, the game theory approach has
problems if s
tates or actors with veto power

are included as they may reduce the
influence

and effectiveness of coalitions (
P
orter

17).


The theoretical approach of institutional bargaining is based on the belief that the
critical

concerns of individual state
s

are economics and security. This makes addressing


17

environmental problems and

their issues
challenging
.
This may occur for several reasons.
States, like underdeveloped states, may not have the resources available to address
concerns that are not immediately pressing like the environment. Consideration for the
environment is also di
fficult in states the support a strong exclusionist paradigm that does
not require environmental consideration.
Based on these problems, i
nstitutional
bargaining

suggests that it is through international institutions, such as regimes, that
international be
havior towards the environment can be determined, implemented, and
enforced (
P
orter

18).


The e
pistemic communities theoretical approach is founded
o
n the concept of
international learning through the medium of scientific research. Scientific specialists
j
oin with “officials in international organizations” to form an epistemic “community of
experts sharing common values and approaches to policy problems” (
P
orter

18).
Difficulties

arise within this model
because

experts
,

as humans
,

can be biased towards

part
icular state or private interests.
Some
times, scientific experts are
excluded from the
process of regime formation. They may be

considered
un
important
to the process

or
scientific knowledge

concerning the issue

may be too limited to effectively contribute
(
Porter

18).

Three principles of international cooperation have been generally accepted
concerning r
egimes focused on transboundary resource management. Rongxing Guo in
Cross
-
Border Resource Management

describes these principles as, “(a) the prohibition of

management practice likely to cause substantial injury to other states; (b) the principle of
equitable utilization of shared resources; and

(c) the duty of prior consultation and
cooperation in good faith”

(
Guo 92
).




18


While

the use of the “no harm” princi
ple began in 1935 to settle an air quality
dispute between the U.S. and Canada, it was
not until

1972 that the principle was outlined
explicitly by the Stockholm Declaration on the Human Environment. The declaration
stipulated that “states have...the sover
eign right to exploit their own resources pursuant to
their own environmental policies and the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other States or of
areas beyond the limit
s of national jurisdiction” (Barrett 121). However, this article is
often seen as a contradiction and generally the sovereignty clause has been more
powerful than the obligation to not cause harm.
I
f the principle
is

invoked, it is
commonly

because it is
i
n the best interest of a state actor. Also, the principle does not
explicitly state that a risk assessment must be performed or that potential effects from an
action must be known. When interpreted in this way, states are able to dodge the use of
this pri
nciple by assuming that any risks or potential harm are not apparent at the time
while a

more strict interpretation of the principle encompasses actions that are
precautionary and cooperative
and may require risk assessments prior to action (Guo

93
;
Barret
t 121,122)
.

Other interpretation problems focus on the definition of “harm.” What
constitutes harm to another state and who decides what limits should be used is often part
of regime negotiations and can drastically change the outcome of regime formation
(Barrett 123).


The principle of equitable utilization focuses on the allocation of transboundary
and shared resources and has become seen as a customary law. Equitable utilization was
outlined in
The
Helsinki Rules on the Uses of the Waters of Internation
al Rivers

in 1966
and has been applied to other regimes since that time, often through the
judiciary system


19

(Barrett 126
;
Guo

94). Similar to the no harm principle, equitable utilization does not
have a central definition, and how
a definition

is determine
d is an important part of
regime negotiations and outcome

(Guo

94
)
.


The principle of good faith cooperation is a customary principle that “provide
[
s] a
normative context to a negotiation” (Barrett 124). Within this framework, “joint
development” is viewe
d as the model for transboundary resource utilization, but often is
not achieved.
Ultimately
, this model can only be efficient within the context of a binding
regime (Guo 95).
It is important to note that multiple environmental regimes are required
to achi
eve a specific outcome and that regimes rarely follow a single theory (Barrett 136).


Actors in Regime Formation


Numerous actors influence the formation, implementation, and enforcement of
environmental regimes. State actors are the most important in dete
rmining the final result
and outcome of regime formation, but others such as international organizations (IOs),
nongovernmental organizations (NGOs), and private corporations also impact regime
formation in various capacities based on their unique characte
ristics. State actors
participating in regime formation can take on various roles including those of lead state,
supporting state, swing state, or veto state (also termed blocking state). It is possible for
multiple states to participate in the cap
acity of

a lead state, and since roles are
fluid
, they

may shift throughout the regime formation process (
P
orter

35).

Lead states in environmental regime formation show a “strong commitment to
effective international action on the issue” (
P
orter

36). In this capac
ity, lead states
provide what they perceive as the most productive and effective negotiating strategies
and work to gain support from other state actors.
They

pursue their goals through various


20

methods that may include research to display evidence of a pro
blem and future negative
outcomes if the issue is not addressed quickly. Lead states may try to increase domestic
pressure on key states through
many

strategies
. First, they may

increas
e

public awareness
of
an

issue
at the domestic level within their own s
tate and other states important to
regime formation
. They may also independently take action on specific issues in order to
“lead by example” (
P
orter

37). Other strategies include the use of non
-
state actors
like

IOs and NGOs to help set the agenda and app
ly pressure within other states. Lead states
may
also
offer
incentives

like

money and technology to gain support for the issue from
other states (
P
orter

37).

Supporting states back the positions of lead states,
though they do not necessarily
take as active

a role.

A swing states requires some “concession to its interests” in return
for support of the issue, though the state does not request a compromise which would
weaken the overall regime. Veto states oppose the regime and may work to either weaken
the re
gime or make it entirely ineffective (
P
orter

35).

The role a specific state actor chooses to adopt is influenced by many factors
.

Th
is

includ
e
s

concern
s

about international image and prestige,
though

the greatest
pressure is
often
from domestic politics
,

economic considerations
,

and
,

to some extent
,

ideological interests (
P
orter

37). At the sub
-
national level, states and provinces can
directly influence the role of the state in international regime formation, especially when
they play a significant economi
c role in relation to an issue (
P
orter

44).

Emphasis on certain concerns may predispose a state to assume a specific role in
regime formation. For instance, economic concerns tend to encourage a veto role whereas
strong public support for an issue ideologi
cally and politically, or at least lack of


21

opposition, supports a lead state or swing state position. Similarly, the desire for
international prestige may result in a state taking a leading role in regime formation while
other diplomatic relationships may
be maintained if a state assumes a veto role position
(
P
orter

38
-
43). States can also form regional groupings or multiple state organizations
like

the European Union.
These

associations may have broad objectives such as
economic and political matters that
may require environmental consideration, or they
may concentrate on narrow issues where environmental concerns are central (
P
orter

59).


Non
-
state actors are also crucial to regime formation and implementation.
International organizations (IOs), also refer
red to as intergovernmental organizations
(IGOs), are created by states to address
an assortment

of narrow or broad issues. IOs have
differing degrees of independence from the participating states though they are staffed by
members of the involved state go
vernments. IOs influence regime formation and
outcomes in various ways
by

defining what issues will be on the agenda for
consideration, organizing regime formation, shaping domestic pressures within states,
and developing “normative codes of conduct” or so
ft laws which are agreed upon, non
-
binding regulations and policy. Soft law agreements are desirable with respect to certain
issues
since

they provide a quicker result than carrying out the formation process of
treaties and binding agreements

or hard laws
.

However, s
oft law

measures are criticized
because

they do not require conformity since their non
-
binding nature intrinsically lacks a
means for enforcement. Yet it is possible for
these

agreements to become binding if they
are eventually accepted by all s
tate actors as the norm of action on an issue or if
dissatisfaction with compliance to the soft law is great enough to encourage states to form
and enter into binding agreements (
P
orter

44
-
49).



22


IOs with the greatest influence on international environmenta
l issues are
multilateral financial institutions
. For example,

the World Bank control
s

mass financial
resources which have great impacts on states, especially those of developing countries.
These
IOs are dominated by a small number of states since a state’
s contribution
correlates to the amount of impact their vote has within an IO. Such organizations have
been accused of supporting financial allocations that are against
sustainable development,
equity,

and environmental quality issues though certain steps
have been taken by
some

IOs to counteract this criticism (
P
orter

53).

Like IOs, nongovernmental organizations (NGOs) are able to influence
environmental regime formation due to their unique characteristics. An NGO is “a
private, nonprofit organization that

is not beholden either to government or to a profit
-
making organization” (
P
orter

61). NGOs in
developed

states that exert international
influence on issues may take several forms
.
These forms include

international NGOs
that
have affiliate NGOs in other co
untries connected through a loose or centralized
organization, large domestically powerful NGOs with international concerns, or think
tanks and research institutes that perform and publish research on specific topics and
suggest ways to proceed. Like state
s and other organizations, NGOs may form alliances
and groupings at the international level to assert more influence on specific issues (
P
orter

61
-
62
).

Influencing characteristics of NGOs are their concentration and dedication to
specific topics
that resul
t

in
a large array of

knowledge

and their “representation of
substantial constituencies” that can be powerful political forces domestically. By utilizing
such characteristics, NGOs are able to influence regime formation and outcomes.
They


23

may do so by “def
ining a new issue or redefining an old one” to set the international
agenda or may “propose draft texts” before conventions commence.
NGOs also lobby at
both the domestic
and

international level
s
. Domestically, NGOs may apply pressure to
states with major
roles in regime formation by increasing public awareness
through

education, methods of direct action
like

“consumer boycotts,” and lawsuits. The large
amount of technical and legal knowledge of issues by NGOs is useful in providing
supporting and lead stat
es with comprehensive knowledge and stronger arguments
concerning an issue. After regime formation or soft law agreements, NGOs are able to
supervise and detail compliance. Their report
s are generally

considered to be less biased
than those published by af
fected
states
,

and NGOs are able to apply pressure for non
-
compliance

through monitoring
, which may suggest that stronger enforcement or better
mechanisms for enforcement are needed, or that a
n agreement needs to be revised

(
P
orter

61, 65
-
68).

Corporations

as private actors are “directly affected by environmental regulation”
and seek ways to minimize any negative impact resulting from regimes by influencing
regime formation and their
outcomes
(
P
orter

71). Since environmental regimes and
policies tend to dim
inish profits, corporations often work to weaken agreements.
However, corporations that are being affected by strong domestic environmental policy
may seek international policy which will influence
international
competition in a similar
manner (
P
orter

71).


Several characteristics of corporations provide ways in which they may influence
international environmental issues. Like NGOs, corporations have a large knowledge

base

about the issues of interest and are able to supply information and well formed


24

argum
ents to states

and
IO
policymakers

that are in agreement with their interest
s
. More
directly, corporations influence regime formation like other actors by working to “form
the nature of an issue so that it is beneficial to their interests” and by
lobbying

participating states (
P
orter

73). Domestically, they may apply pressure for the formation
of policy favorable to their interests.

These

actions by corporations may make it difficult
for states to work in various roles and corporations are often criticized
for working from a
biased, self serving platform (
Porter

73
-
75).



Regime Success


In
Environment and Statecraft
, Scott Barrett

emphasizes that a successful regime
depends on its ability to be self enforcing. In order to achieve this, a regime must be
“ind
ividually rational, collectively rational, and fair” (xiv).
Individual rationality
addresses the issue of sovereignty and creates mechanisms in which it is in the best
interest of each individual st
ate actor to remain in a regime,
comply once they have
joi
ned
,

and
make it impossible for an actor to benefit later through a change in behavior

(Barrett xiii). Similarly, a collectively rational regime is one in which state actors cannot
collectively gain
more, that is “the signatories will maximize their aggreg
ate payoff”
(Barrett 197). Finally, a fair regime is one that is legitimate. This is an important aspect in
a self
-
enforcing treaty since individual state actors seek to maximize their benefits
(Barrett xiv).

Furthermore, Barrett
outlines what he considers

to be the ten most important
aspects of successful environmental regime formation. These are: the use of incentives,
mechanisms of enforcement including participation, scale, methods used to achieve the


25

desired
ends
, depth vs. breadth of collaboration,
li
nkage,

the minimum number of states
required, side payments, pragmatic expectations about the outcome, and
the relation
between regimes and customs

(Barrett 355)
.



As previously discussed, regime formation occurs when the paradigm or status
quo is deemed
unacceptable. The end goal of regime formation is to achieve a new
paradigm which requires a change in actions. This change is most effectively brought
about through the use of incentives

without which there is no tangible reason for states to
act in ways
they had not previously intended (Barrett 355)
.



Along with incentives, enforcement of participation in regime formation is crucial
and should be the primary focus during regime formation. Enforcement that applies only
to non
-
compliance can hinder partici
pation since non
-
participating states are free from
such penalties. This is why “a treaty that sustains real cooperation must deter non
-
compliance
and
non
-
participation” (Barrett
270
). The number of participating state actors
is dependent on the scale of t
he issue

with regional troubles being understandably easier
to successfully resolve
since

they require fewer state actor participants than those at a
global level (Barrett 355).

M
any of the important aspects for successful regime formation are “strategic
c
hoices” that reform incentives to result in changes in acti
ons.

The method constructed to
achieve the goal of a regime is an important strategic choice as it will influence the
amount and extent of participation as well as the actual effectiveness of the r
egime.
Methods can be quantitative (e.g. limit the actual amount of pollution allowed) or address
equipment standards to make sure that all actors are using the minimum technology
needed

(Barrett 267)
.
The specific method chosen will either be a “strategic

complement”


26

or a “strategic substitute” (
Barrett
256). Strategic complements are methods i
n

which the
participation of some state actors induces participation by more state actors (positive
feedback). Conversely, strategic substitutes are methods in which

as some state actors
participate more, other state actors will participate less (negative feedback) (Barrett
256,355).


Another strategic choice is depth versus breadth of collaboration. The depth of
collaboration is defined by the level at which the meth
od will be employed and the
breadth is determined by how many state actors choose to participate. The two are
interrelated
because

the greater the depth, the fewer

state

actors will be willing to
participating and vice versa.
Finding the right combination
of depth and breadth is
important in achieving the central focus of participation (Barrett 356).


“Linkage of instruments” is
a

strategy to determine what
regimes or agreements
currently in force
will be linked to
participation

or further action

of a new
regime
.
Frequently
, linkages occur with exterior trade agreements and can be used as extra
negotiating leverage. Whether or not to use linkages is an important strategic choice
since

they can be detrimental as well as beneficial (Barrett 308).

Linkages may

also affect the
strategic choice of side payments
,

which come in different forms such as monetary or
technological
,

and are used to make participation
more attractive to

certain state actors
(Barrett 357).


Determining the minimum number of participating
state actors is also a strategic
choice and can depend on the methods of the regime. Methods that are strategic
substitutions will need a large number of participating state actors in order to be effective


27

whereas
methods that are strategic compl
e
ments wil
l have a lower minimum requirement
and
will
be most successful at exceeding that level once it has been reached (Barrett 356).


The most realistic instruments for successful regime formation must be
determined and negotiators must realize that regimes “ar
e often able to sustain only a
second
-
best outcome” (Barrett 357).
Idealistic outcomes are generally not possible by
using the available instruments so outcomes should be considered within the context of
available mechanisms. Similarly, the recognition of
the role that custom plays in
influencing regime formation and in turn, being influenced by regime formation can
provide suggestions for structuring instruments and incentives (Barrett 357).


The rest of this thesis will address the specific concern of GMO
s in Europe and
the possibility of regime formation. First, historical and current GMO policy of the EU
and EU member states will be explicated in order to frame the nature of the policy schism
between the two and understand the positions of various state
actors. Then, to further
consider the issue within the framework of environmental regime theory, the main non
-
state actors and their influences will be examined before finally considering what regime
theory might provide

as

the best possible context for re
gime formation given the situation
and actors.



28

EU GMO POLICY

AND MEMBER STATE DIVERG
E
NCE


Over t
he
past few decades, the
EU has gone from a preventative model of
regulation concerning GMOs to a precautionary model. The new model gained popularity
starting

in the 1980s and has inf
luenced

current GMO policy to a great extent.
Precautionary regulation is based on the “precautionary principle” of risk assessment
“which puts a priority on anticipating and guarding against environmental damage”
(
Josling

185). Re
gulation resulting from
this

model is considered process oriented
as it

examines

the means of production of a
good

and
is a

“horizontal” approach
,

because

it
regulates all similar products regardless of their intended use.
The precautionary

model is
a “pro
active regulatory approach [that] anticipates environmental hazards that have not
already been documented but which could conceivably occur” (
Josling

185). In this way,
the precautionary approach to

regulation is environmentally cautious

and does not requi
re
that the costs of regulation on the public or industry

necessarily be considered
. Supporters
of a precautionary model of regulation for GMOs argue that
this

approach is needed to
prevent environmental disaster caused by GMOs. This is a possibility consi
dering the
complex nature of ecosystems mak
ing

it difficult to determine and account for all
possible causal associations
,

and
a
s a new technology, there is a lack of knowledge
pertaining to potential effects (
Josling

185, 186).

Consumer fears and reluctan
ce to accept GM products in the EU are a response to
the inability of the EU and member states to guarantee food safety in the recent past.
These sentiments arise from
events like
the nuclear catastrophe at Chernobyl
(where

policy had promised safe nuclear

energy
)

or

the
outbreaks

of

Bovine Spongiform
Encephalopathy

(BSE

more commonly known as Mad Cow Disease
)
.

These events



29

suggest that policy formers’
devotion

to agricultural interests endanger consumer health.
These

events have engendered in consumers a m
istrust of the ability for policy to protect
their health and
related
interests (
Josling

188).


EU policy concerning the regulation of GMOs has followed the pattern outlined
by the precautionary model of regulation, but problems in implementation have aris
en
and resulted in a schism between EU policy decisions and the desires of individual
member states. This division may be illustrated by considering the history surrounding
E
uropean Union

GMO labeling policy.

The first such policy, the Novel Foods Regulat
ion, was passed in 1997 and
required labeling of “GMO
-
derived products that were no longer substantially
‘equivalent’ to traditional products” (
Josling

189). Primary GMO imports to the EU did
not fall under this classification
and

did not require labeling,

leading to a large public
objection and the eventual overturning of the policy by Directive 90/220/EEC. The new
policy required labeling of all GM products approved for commercial use in the EU

(
Josling 189
)
.

In 1999, procedures of policy formation in th
e EU was revised by Council
Decision 99/468/EC “which changed the voting procedure applied to GM crop approval
to one in which only a qualified majority (as opposed to unanimity) was required to reject
a proposal from the Commission” (
Josling

189). This al
teration

caused

the

EU member
states of Denmark, France, Greece, Italy, Luxembourg
,

and later Austria, Belgium, and
Germany to
refuse to
approv
e

GMO products and

to

call for policy requiring
traceability

and labeling guidelines (
ENS
). This culminated in a
de facto moratorium of GM product
s

in the EU between 1999 and 2003. Some individual member states completely banned


30

GMOs (Greece) while others implement
ed

partial bans
(Austria, France, Germany, and
Luxembourg)
on growing for c
ommercial and experimental us
es

(ENS)
.

In 2004, Directive 2001/18/EC came into effected and lifted the EU suspension
on GMOs and repealed
Directive 90/220/EEC
. The directive requires that the European
Food

Safety Authority (EFSA) complete

a risk assessment for each GM product seeking
approval and a proposal from the Commission that must be approved by a majority of
member states. Under the directive, all GM products must be labeled and standards for
traceab
ility created (
Josling

190). The text of the directive conforms to the precau
tionary
model of regulation in Article IV

by stating:

Member States shall, in accordance with the precautionary
principle, ensure that all appropriate measures are taken to avoid

adverse effects on human health and the environment which
might arise from the deliberate release or the placing on the
market of GMOs.

(
Directive 90/220/EEC
)

According to
thi
s article and
the established EU directives, a GM product which
has been approved for commercial use may not be banned by a member state, but that a
“safeguard measure” may be implemented based on “new or additional information made
available since the dat
e of consent” (Currie 18). Such measures are only temporary, but
may become permanent after review and approval by the EU Council of Ministers.
However, if the EU Council of Ministers fails to reach a majority decision after three
months, the power of deci
sion is
given

to the Commission for final judgment. This
provision
,

allowing for the implementation of
safeguard

measures
,

has failed to be


31

effective as various member states have sought such national bans only to be rebuffed by
the Commission (Hanrahan 5)
.

Nine measures have been applied for by various member states and range in type
and extent.
The most extreme
example of this is Greece’s desire in 2005 to ban the
seventeen strains of GM maize seed that are approved for use in the EU. These strains
,

know
n as MON 810
,

are produced by the U.S. company Monsanto and have undergone
the process of GMO approval as stipulated by Directive 2001/18/EC.
In

their risk
assessment
,

t
he EFSA concluded that “the Panel could not reach agreement on the safety
evaluation of

the hybrid [MON 810]” though they believed that the unhybr
i
dized MON
863 posed no health or environmental risks different from conventional maize (
EFSA
).
When a decision could not be reached by the council, the
C
ommission was able to
assume legal power an
d ordered Greece to lift the
ir
safeguard

ban in 2006 under
the
claim that Greece did not provide correct or compelling evidence to support a ban
since

Greece’s

main
concern centered on

potential dangers to human health. The ban was
lifted, but Greece exten
ded a new
safeguard

ban for the same GMOs under the argument
that there is scientific evidence to establish that the undesirable environmental effects of
the GM products constitute reasonable support for a ban. The Greek agricultural ministry
cited concern
s about the impact of GMOs on biodiversity, pest resistance, and gene drift
to non
-
GM crops (
Greenpeace
).

This section has outlined the policy of the EU regarding GMOs and the concerns
of certain member states. This dynamic is the catalyst for at least min
ilateral (regional)
regime formation in which the EU and these member states would be the main state
actors. However, to better understand the current schism and future regime possibilities,


32

it is important to evaluate the effect other influencing actors

h
ave on the current situation

and will be the topic of the following section
.



33

OTHER INFLUENCING ACTORS



Other influences on GMO related policy by the EU and EU member states include
other state actors
(
such as the U.S.
)
, IOs
(
like th
e World Trade Organiz
ation (WTO
)
,
nongovernmental organizations (NGOs such as Greenpeace),
and
Green parties

(like the
European Greens)
.
These o
ther actors influence GMO related policy in their various
capacities as well as through interaction with and censure of each other.



United States

The major
, non
-
European

state influence is exerted by the United States. While
the U.S. originally took a precautionary model policy stance on GMOs, the state changed
to a preventative approach of regulatory policy in the 1980s

(
the same tim
e that the EU
moved in the other direction
)
. A preventative approach to regulation policy “attempts to
minimize environmental harm whenever the existence of harm has been scientifically
demonstrated” (
Josling

185).
This

is considered
a

vertical


approach
since

it attempts to
regulate
products
based on the
ir

end use. This means that medical biotechnology is
considered under the regulation of other medical technology while GM products for food
consumption are regulated under food policy. Proponents of
the pr
eventative

method
argue that it allows for greater flexibility in the regulatory process

(Josling 185)
.


The different
models
of

regulatory policy used by the U.S. and EU have

led to
long
-
standing tensions with regards to GMO production and trade between t
he two
bodies. The influence of the U.S. on European regulation of GM products has been
pursued most directly through the WTO (
Josling

185
-
187).

From a regime theory
standpoint,
as a strong state,
the U.S. is also able to exert large power over regime


34

form
ation, implementation, and enforcement. The U.S. has not shown interest in
committing to environmental regimes concerning GMOs as is evident by the state

s
refusal to sign onto the Cartagena Protocol on Biosafety

in 2001 (
UNEP
).

Within regime theory, stat
e actors are more likely to take a veto role position if
their major concerns with a proposed regime are economic.
T
he U.S
.

w
ill

not provide
support for a regime that did not take a more pro
-
GMO stance and w
ill

be powerful
actors against successful regime
formation. While regime theory does not require that the
U.S. sign onto a regime for the formation and implementation to be successful,
nonparticipation on the part of the U.S.

w
ill

make a GMO regime that supports EU
member states difficult to achieve s
inc
e

it is a large influencing actor. Successful regime
formation c
an also

have the ability to
in
directly influence GMO regulatory policy
in the
U.S. by making WTO claims more difficult to win. Nevertheless, successful regime
formation also has the possibilit
y of pushing GM production to less regulation restrictive
areas of the world.


World Trade Organization


The WTO has become involved with the issue of GMOs and the EU through
claims filed by the U.S., Canada, and Argentina
that assert that EU

regulations
on GM
products have
violated trade agreements and resulted in

an

economic loss for the states.

The investigation by the WTO, labeled “European Communities Measure Affecting the
Approval and Marketing of Biotech Products,” was concluded in September 2006 wi
th
the ruling that the EU and member states had violated international trade regulations as
specified by the WTO Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS
)

and

the Technical Barriers to Trade (TBT) Agreement. These


35

agreements
, along with the General Agreement on Tariffs and Trade (GATT) have been
and will continue to be influential on the formation of environmental regimes regarding
GMOs (
Josling

193). While the EU had already revoked the de facto moratorium on GM
products bef
ore the final ruling, the WTO still ruled that the moratorium broke
the

provisions of the trade agreements
,

called for the end of nine safeguard measures

implemented by various EU member states
, and

sta
ted

that approval of
twenty
-
four

GM

products had been
unjustifiably delayed (Currie 6).


Following the WTO’s ruling, a
n argument ensue
d

centered around the nine
safeguard
measures by EU member states as to whether they are properly complying with
the established trade agreements, particularly regarding the S
PS agreement in which

…no Member should be prevented from adopting or enforcing
measures necessary to protect human, animal or plant life or
health, subject to the requirement that these measures are not
applied in a manner which would constitute a means
of arbitrary or
unjustifiable discrimination between Members where the same
conditions prevail or a disguised restriction on international trade
.

(SPS)

The conflict over the already adopted provisional safeguard measures by some
member states centers on wh
ether SPS Articles 5.1 or 5.7 can be applied to support
safeguard

measures. SPS Article 5.7 may be used to apply SPS measures “where
scie
ntific evidence is insufficient.” When applied, the measure

requires that the

state

actor must establish the informatio
n needed to produce an objective risk assessment of
the situation
within

a reasonable time frame. SPS Article 5.1 allows for SPS measures to


36

be applied when risk assessments indicate that
these

measures will protect human,
animal, and plant health as outl
i
ne by the SPS Agreement. (SPS)

The EU claims that s
afeguard

measures meet the requirement of SPS Article 5.7
as they are provisional and require the acting state to provide new scientific evidence to
justify
a safeguard measure
decision.
In opposition
, the

WTO found in their report that
safeguard measures as determined by EU policy do not meet the criteria stipulated by
Article 5.7. The panel based this
decision

on the belief that sufficient scientific
information and risk assessments of the GM products exi
sts
,

thus finding that safeguard
measures by EU member states are “not consistent with the requirements of Article 5.7 of
the SPS Agreement”
(WTO 8.1
-
8.64).

Additionally, the panel assessed whether or not
risk assessments provided by member states with saf
eguard measures support the use of
Article 5.1 of the SPS agreement or constitute new evidence under Article 5.7. The panel
found that the evidence submitted could not be considered risk assessment under the
definition as stipulated by Annex A.4 of the SPS

agreement as:

The evaluation of the likelihood of entry, establishment or spread
of a pest or disease within the territory of an importing Member
according to the sanitary or phytosanitary measures which might
be applied, and of the associated potential b
iological and economic
consequences; or the evaluation of the potential for adverse effects
on human or animal health arising from the presence of additives,
contaminants, toxins or disease
-
causing organisms in food,
beverages or feedstuffs
.

(SPS)



37

Converse
ly, the panel

stated

that risk assessments performed by the EFSA in the approval
process for GM products do constitute an appropriate risk
assessment
as defined by the
SPS agreement. The panel concluded by instructing the EU “
to bring t
he relevant
member S
tate safeguard measures into conformity with its obligations under the
SPS
Agreement
” (WTO 8.64). Opponents claim that “science that serves regulatory purposes
is not purely scientific” by being influenced by other factors and “assumption
[s]

about
the cont
ext into which the product will be introduced” (Mills 332).

The EU announced
that it would not appeal the conclusions and recommendations of the WTO’s panel,
though
it
ha
s

requested an appropriate time frame for coming into compliance with trade
agreements

(
ENS
).


Within the framework of regime theory, the WTO as an IO exerts its greatest
influence on this issue by
shaping domestic pressures,

notably through their most recent
ruling. The WTO’s interpretation of trade and SPS agreements has shaped the soft l
aws
and will continue to do so regardless of regime formation unless
hard law trade
agreements, many of which were facilitated by the WTO,
are specifically addressed.



Nongovernmental Organizations and Green Parties

Often acting in opposition to other in
fluencing actors are Green parties and
NGOs. These actors seek both binding and nonbinding
regimes

to counter trade
agreements like GATT and TBT
,

or
to
make the SPS agreement more favorable to their
causes (Mills 329). Beginning in the early 1980s in Europ
e, th
o
se groups concerned
about GMO regulation worked to mobilize a previously inactive general public “into an
active and disruptive voice in the political process” (Gottweis 237). Their success in


38

doing so led
these

actors to inform the central issues of

policy discourse. By 1989, the
influence of a vocal public was
c
ited by the Organization for Economic Cooperation and
Development

(OECD)

as the single most important factor in the “diffusion of this ne
w
technology” (Gottweis 237).

These

achievements can b
e attributed to the fact that the
movement brought both consumer and environmental concerns to the center of the debate
(Mills 340
; Schurman 10
).

This social movement was an important counterweight to the language
of

the
biotechnology industry

that
domina
ted the regulatory process

of GMOs

at the time.

The

actors

in this movement

created new frameworks of critique incorporating concepts from
ecology and the alternative paradigm centered
on

sustainable development

and

t
he
agendas of these movements were not

necessarily rooted in their access to power; they
were rooted in challenging the logic of the dominant rationalizing apparatuses” (Gottweis
239). Socially, boycotts of GM products by consumers led many retailers to adopt
“voluntary standards” which in tur
n
led to

a decline in profits for the biotechnology
industry. The pressure was great enough
cause

Monsanto
to claim that

the company

would change its most controversial practices

(Mills 330)
.


Th
e

public consciousness of GM related issues has remained an
important actor
politically through the increased presence of Green party elected officials at all levels of
the governmental structure. The U.S. has not had the same level of public influence in
large part due to the inability
of the

Green party
to
partic
ipat
e

in a system dominated by
only two parties. Within Europe, proportional representation has enabled

G
reen parties to
gain

a

larger political holding (Gottweis 240).



39


In 2004,
t
he European Green Party was formed through the incorporation of
thirty
-
two

n
ational level Green parties into a political party at the EU level

that

in
conjunction with the Europea
n Free Alliance
,

now holds forty

two

seats in the European
Parliament. The European Green Party outlines “ecological sustainability, equity, and
social j
ustice” as guiding principles.
B
iotechnology

is

o
ne area of focus in which they
have passed resolutions regarding GMOs that include the right for any country to remain
free of GMOs and to work towards the creation of common action in the forms of civil
and

peaceful protest
s

(
European Greens
).

NGOs and Green parties from the local, national, and international level
s

will be
valuable to any actor or coalition of a regime

concerned with GMOs

since

they already
command political and consumer influence in membe
r states and the EU. These actors
,

along with member state actors
,

should emphasize the alternative economic paradigm by
basing the discussion
on

the concepts of sustainability and equity for future generations.

E
thical questions regarding the possible ben
eficial uses of GMOs in reducing food
scarcity and malnutrition must be heavily weighed as these are not prominent national
concerns within each member state.

The final section of this thesis will address what the formation of an
environmental regime conc
erning GMOs may look like by applying the theories
discussed in the
previous
sections about regime formation and success
,

while at the same
time considering
the specific situation in the EU including important state and non
-
state
influencing actors.



40

THE P
OSSIBILITY OF ENVIRONMENTAL REGIME FORMATION BY EU
MEMBER STATES CONCERNING GMOs



The

divergent views of GMO regulatory
policy between the EU and EU member
states has led to a
controversy over GM regulation.

Due to outside influencing actors
such as the U
.S. and WTO, the EU has shifted its policy to a more open, pro
-
GMO stance
while certain member states remain weary and attempt to use the precautionary principle
in their national policy to safeguard against the possibili
ty of environmental and health
e
ffe
cts.
M
ember states have been pushed by the EU through its GMO regulatory policy to
align with EU opinion
,

even
when such acts are against
member states and often their
citizenry’s desires. The inability of individual member states to stand against such
ext
ernal pressure suggests that an alternative approach c
an

better serve member states


divergent interest
s

concerning GMOs.

The best approach w
ill

be the formation of an international environmental regime
concerning GMOs.
Such

a regime will be evaluated with
in the framework of regime
formation theory and will consider what theories may be most useful, what roles various
state actors may assume, and how the other major actors c
an

influence this process and
outcome. It
will

also
be
important to recall that regi
me formation has greater success if
the regime is self
-
enforcing which can be optimized by making the best possible strategic
choices.


Table

1 outlines two general regime formation possibilities

based on scale
(minilateral and multinational)

which EU memb
er states c
an

pursue. The topics
in the
table
address regime formation theory, principles for transboundary resources, and the


41

components for success. Based on the specific concern, the optimum strategy is
suggested for each scale.

Table 1. Strategies for
regime formation based on scale concerning GMOs

Scale

Minilateral


Multinational



State Actors

EU and EU member states


Developed, developing, and
underdeveloped states

Method

Strategic compl
e
ment very
strong


Strategic compl
e
ment
preferred

Suggested

Regime
Formation
Theory

Game Theory/Epistemic
Communities Model


Epistemic Communities

Avoid Institutional Bargaining

Minimum
Number of
State Actors