A Study Of Legal Regulation Of GMOs In The Perspective Of Pluralism

GMOs refer to the commercialized genetically modified organisms and the productsincluding ingrediensts from genectically modified organisms. At present, the commerciallyadopted and promoted organisms are primarily the first generation organisms, therefore theGMOs hereby are mainly in reference to the organisms produced with the firs generationGMO technology (primarily GM Crops) and the GM Products including the ingredients ofsuch a kind (primarily GM Foods).GMOs produce two primary kinds of risks of health andenvironment,which have yet no certain scientific conclusions. Such a scientific uncertainty ofGMOs yields a great challenge towards the international trade regulation of GMOs. How toequilibrium the risks and the benefits of GMOs, how to make appropriate regulations whichcan both harness the risks of GMOs and promote the GMO technology development for thefullest wellfare of humankinds,are important and pressing tasks for governments and scholarsworldwide.Regarding how to establish an international legal regulation of GM products,there aretwo mutually conflicting theoretical models and approaches represented respectively byConstitutionalism and Pluralism. Constiutionsm is a definition from national legalities, aimingto construct a common framework to define various fundamental principles of an overallhierarchy and the relationship among different parts, while Pluralism maintains that aheterarchical structure is typical of the international legal regulation,and the different partsthereof is not governed by some common principles,among which is a more mutallyinteractive relationship and more influenced by political factors.By means of comparative and positive analyses, this dissertation studies the causes of thegreat separations and conflicts at international,regional and national levels in the field of theinternational legal regulations of GM products, and concludes that the Pluralism model is abetter approach which is more capable of pushing forward the global regulation of GMproducts with a case study focusing on the Pluralism implied by instatitional comparasionadopted by the Panel in the process of judging the Euro-America Biotech Products case.Under the model of Pluralism of the international legal regulation of GM products, thedeveloping countries are more flexible and automonous to make legal regulations bettersuitable for and in the fullest interests of their own nations. Nevertheless,the Pluralism model is a double-blade swords as well, which brings some challenges to the developing countries aswell. As such, this dissertation discusses these challenges and proposes some solutionsthereto.The dissertation consists of six chapters. The first chapter mainly introduces some basicdefinitions and theories regarding GM Products, defining GM Products as the commercializedGM organisms and products containing ingredients of such organisms. At present, thecommercially used and promoted GM products are mainly confined to the fist-generation GMProducts, thus the GM Products herein refer to the commercialized GM organisms(mainlyGM crops) and products(mainly GM food) containing ingredients of such organisms madewith the first-generation biotechnology. Then the dissertation continues to introduce theglobal status of commercialization of GM Products, the respective growth acreages of GMcrops both in the developed and the developing countries, and the total volume and theperspective of the global trade of the GM Products, with a point of view that the internationaltrade of GM Products has become an inevitable tendency. In the next, the discussion turns tothe two main kinds of risks of GM Products, that is, healthy and environmental risks, and therelation and the differences between the risk regulation and the risk evaluation, meanwhilefocusing on the five differential principle of the risk regulation and evaluation: the scientificprinciple, the precautionary principle, the essentially identical principle, the social riskprinciple and the proportional principle. And then the analyses come to the various challengeson the international trade regulations brought by GM Products.The second chapter takes analysis of the two models of establishing the global legalorders: the Constitutionalism and the Pluralism. The dissertation maintains that the order ofdisorder in the post-national legalities is a typical prescription of the present changing age. Inthe tides of the EU integrity and the globalization, the old Westphalia system has already beensegmented, while the new system is still unclear with various new models competing for thenew domination. Regarding how to establish post-national legal orders, the conflictingtheoretical models are typical represented by the Constitutionalism and the Pluralism.Although each of the two different models wears different masks, the difference between thetwo models is mainly about whether there is a structural center of the legal and politicalorders. The Constitutionalism originates from the definitions of national laws, whichendeavors to construct a common framework to define the various fundamental principles ofan overall hierarchy, and the relations among the different parts, while the Pluralism insists that a hierarchical structure is typical of the post-national orders, and the different partsthereof do not subordinate to some common legal rules, and that the interaction between thedifferent parts is more open and more susceptible to the political factors. The Pluralism ownsthree kinds of prescriptive functions in forming a globally legal order: the adjustable function,the competitive function and the balancing function. Due to the different viewpoints ofdifferent people regarding the risks of GM Products, there are different GM Productsregulation principles and systems both at national and international levels. The conflicts of theinternational GM Products regulations are not only a south-north issue, but also an issuewithin the developed countries, between the developed countries and the developing countries,even within the developing countries as well. At the same time, the different internationalorganizations also have greatly different regulating methods and principles for GM Products,typical embodied by the conflicts between WTO and Cartagena Biology Protocol. Under sucha greatly segmenting and conflicting background, the Pluralism can better promote the globalregulation of GM Products, being a stabilizing strength to construct a global regulation systemof GM Products.The chapter three primarily introduces and analyzes the GM Products regulation systemsof eight influential countries (including both the developed and the developing countries), andconcludes that GM Products issue is not just a south-north issue, with not only thepolarization of two different camps headed respectively by EU and America within thedeveloped countries, but also the great differences within the developing countries in respectof GM Products regulations. The different developing countries have different regulationsregarding the environmental protection and the food safety relating to GM Products. Many ofthe developing countries lack in a well-developed infrastructure of legal and administrativeregulation. Those developing countries, which have already permitted the growth andcommercial promotion of GM crops or have already established R&D plans, have alreadyestablished their own special regulating measures of GM Products, such as the labelingmeasures of GM Products. However, those GM Products regulations are usually lack ofintegrity, with a different degree of implementation. Most of the remaining developingcountries are just at a starting point in respect of GM Products regulations, lacking in GMfood safety or labeling system. Considering an unclear future of GM technology and theuncertainty of the healthy, environmental and economic risks of GM Products, manydeveloping countries wisely maintain a policy flexibility and ample leeway for policy-making in order to make a better decision when the risks of GM technology are further clarified in thefuture. This complex segmented status of GM Products regulations worldwide indicates thatthe Pluralism model is a more suitable approach to the global regulation of GM Products.The fourth chapter primarily introduces four important multi-lateral regulation systems ofGM Products: OECD, WTO, CBD and CODEX, which respectively have their own differentcriteria and rules. Therefore, these international regulation systems are mutually competitive,and each of them tries to dominate the international regulation of GM Products. The diversityin the international regulations of GM Products is an indication of the predicament andchallenges in the international cooperation in the field of GM Products. However, the diverseinternational regulations of GM Products are the reflection of the different interest claims ofthe relating stakeholders under the contemporary plural world. Although the big powers apt totake advantages of their own strong economic and political strength to choose self-benefitinginternational systems among different international options to advance their own positions andnotions, the competition among the big powers leave some room for various operation ofrights for the small countries.With the analysis of the typical case of trade conflicts of GM Products—EU Biotech Case,the Chapter five is a positive study. The chapter first introduces the backdrop of the EUBiotech case, and then summarizes the main issues in the case. With a comparative means ofplural system, the chapter makes analysis of the pros and cons of each possible system optionby the Panel. Lastly, with analysis of the Pluralism implication of the Panel’s practical option,the dissertation points out that the Panel realize the allocation and balance of the governingrights of GM Product among the different(national and international)legal systems by onlyinsisting on procedural overview, thus promoting the solution of the issue in the greatestdegree.The chapter six firstly discusses the various factors influencing the GM productsregulations of the developing countries, and the influences and challenges brought byPluralism model on the developing countries in the field of GM products regulations,maintaining that the pluralized international trade regulations of GM products make theregulating rules of GM products uncertain, thus enhancing the difficulty for the developingcountries to regulate GM products. Last, the chapter proposes some concrete measures thedeveloping countries can adopt in the context of the Pluralism.