As an economist I approached the review of this book with considerable trepidation. The book is concerned almost exclusively with legal issues and the chapters written by members of the legal profession. It is certainly not an easy read for anyone without formal legal training. Having said that, it is a fascinating read that delves deeply into the extremely complex and contentious issues surrounding how the transformative technology of genetic engineering is to be treated in domestic and international law, and their interface. While the unifying focus of the book is World Trade Organization (WTO) law, the wide-ranging scope is a tour de force of international legal documents and organizations that could come into play in the governance of genetic engineering. While I have written extensively on international issues pertaining to modern biotechnology, I did not even know of the existence of many of the international legal entities discussed by the authors of the various chapters.
Daniel Wüger and Thomas Cottier have assembled an impressive team of legal authors from academia, international organizations, and governments. Their knowledge is impressive and extensive. If I have any criticism, it is that the authorship is European-centric – only one author is based in the US. Given that the major international rift regarding the regulation of genetically modified organisms (GMOs) is across the Atlantic, it would have been interesting to have heard from legal scholars from North America. From my perspective, the conclusions reached by most of the authors tend to support the European perspective on GMOs. The conclusions would have been more convincing if they were also supported by North American-based scholarship.
The book is organized into 13 chapters along with a List of Contributors, a List of Abbreviations (a very welcome addition), and an Index. The book has five parts that provide an introduction as well as the major contentious topic areas – international protection of intellectual property, agricultural production, food safety, and medical applications. The latter has chapters on both human rights and human genetics.
The first two chapters are individually written by the two co-editors. Daniel Wüger leads off and provides an introduction to the volume using the theme of sustainable development, which he suggests has three components – environmental sustainability, economic sustainability, and social sustainability. Using this framework, he sets out both the major questions and the limits to what might be expected from international law. Thomas Cottier follows with a discussion of the interface between trade regulations for GMOs and human rights. I found this chapter particularly informative because the question of human rights is seldom raised among trade economists – Cottier is careful to point out the absence of any explicit reference to human rights in the WTO. Given the ability that the technology provides to manipulate human genetics and the overwhelming presence of for-profit research in human health research – with the co-requisite of intellectual property rights – human dignity questions can be at the forefront of international trade questions. Given that the technology has outstripped international trade law making – most of the genetic engineering technology did not exist when the Uruguay Round negotiating agenda was set in 1986. Given that current WTO law is based on the outcome of those negotiations, it is probably not surprising that both a vacuum exists in WTO hard law and that there have been a number of both hard law and, particularly, soft law initiatives to deal with human rights issues surrounding genetic engineering. The introductory section is rounded off by an interesting discussion of the gender dimensions of biotechnology policy and trade.
The section on intellectual property has chapters on patents, developing countries – with an African focus – and traditional knowledge. In one way the chapter on patents is simply part of the long-running debate surrounding the short-run losses associated with the granting of a monopoly through patents and the incentive for welfare enhancing-innovation over the long run. Getting the balance correct is always difficult and genetic engineering with its ‘patenting of living things’ issues has certainly raised a host of new questions. In the end, however, unless patenting is to be abandoned and research and development in this area moved into the public sector, the limits on intellectual property rights will simply be arbitrary lines in the sand. Some of those with an interest in the question of genetic engineering will always feel that the line is drawn inappropriately. The chapter does an excellent job of laying out the choices relating to patenting.
The chapter on traditional knowledge is very comprehensive and does not need to be read in an international trade context. Given that the TRIPS largely reflects the bias toward individual rights in the domestic legislation of most developed country's intellectual property laws, the international issues are largely those that domestic legislation struggle with when addressing rights held in common and pre-existing – rather than new – knowledge.
Parts III and IV are the heart of the book. They deal with the issues of trade in the products of biotechnology and, in particular, the relationship between the WTO and its rules of trade and the Biosafety Protocol (BSP) and its rules of trade. Within this broader issue, the central question of the Precautionary Principle receives special attention. It is in these sections that the differences between the approach and concerns of legal professionals and trade economists became particularly evident to me. In chapter 10 on ‘Trade, Environment and Biotechnology: On Coexistence and Coherence’, the authors go to great lengths to show that the WTO and the BSP need not be in conflict – there is no legal reason why they should conflict. I don't doubt their conclusion. As far as I can see, their conclusion, and those of some of the other authors, rests heavily on the presumption that measures adopted under the auspices of the BSP should not constitute a means of arbitrary or unjustifiable discrimination, nor a disguised restriction in international trade. Trade economists know that these conditions cannot be relied upon because they cannot be proved. From my reading of the chapters in the book, either legal professionals think that countries would not put in place arbitrary, unjustified, or disguised barriers to trade or, if they do, it is not their concern. Their concerns regarding conflict between the WTO and the BSP relate only to what is written down in internationally agreed documents, not in how they are acted upon. This is good to know – it establishes the boundaries of legal scholarship very clearly.
The discussion of precaution focuses on whether trade barriers can be erected when scientific knowledge is insufficient. There seems to be a presumption that risk arises only from having GMOs in a market. It can be argued that risk also exists if GMOs are not allowed in markets – given the same degree of scientific uncertainty. e.g. by not allowing genetic engineering risks no cure for cancer will be found (see Van den Belt, Reference Van den Belt2003). Thus, it can be argued that one should exercise precaution by allowing GMOs access to markets.
The chapter on biofuels provides a good overview of how the dynamic on GMO crops changes when fuel rather than food is involved. It is particularly interesting when the opportunities for developing countries are considered.
The final section of the book deals with the extremely complex issues surrounding genetic engineering and its effects on human rights and human dignity within an international context. I found this section particularly informative both with regard to the legal concepts involved and the range of international institutions that come into play. I am sure it will be of interest to many of those interested in the trade issues – questions arising from advances in human genetics have not previously been considered trade issues.
I think there is a striking difference between how most of the international trade professionals – not just economists – approach trade agreements and the legal approach showcased in this book. Trade agreements are primarily put in place to restrict the ability of governments to respond to protectionist vested interests. Protectionists are masters at finding weaknesses in agreements that can be exploited. Governments continually test the boundaries of legal agreements through disputes. Procedural delays are harnessed to provide (short-run) economic benefits. Understanding how international trade is affected by the interplay of these forces is the focus. I see little recognition of these harsh realities of the international trade system in this book – and for some readers this will be frustrating. This is not a criticism, it only highlights the differences in academic disciplines. This was driven home to me after reading the long discourse on why the WTO and the BSP can be seen as being mutually supportive. If that is the case, why then are there two sets of rules? – wouldn't one suffice? Presumably, the already existing WTO rules were found wanting and something different was desired.
I think this book should be read by anyone that has a serious interest in international issues surrounding biotechnology. It is not, however, a primer. The issues are examined at considerable depth and complex arguments are presented.
