VJIL Symposium: Doctor, Heal Thyself – A Commentary on Professor Sungjoon Cho’s Critique of Shaffer and Trachtman

[Claire Kelly is a Professor of Law at Brooklyn Law School.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you very much to Opinio Juris for this opportunity to comment on this set of Articles recently published in the Virginia Journal of International Law.

To address rationalism’s failings, Professor Cho prescribes a constructivist or sociological lens in his Article, “Beyond Rationality: A Sociological Construction of the World Trade Organization.” While I wholeheartedly agree with Professor Cho’s desire to supplement the rationalist account with a sociological perspective, I would challenge him to address the same normative biases of powerful countries in that sociological framework. Indeed, concerns regarding “participation, transparency, accountability, and legitimacy” are perhaps more pronounced in the sociological account. It is not clear to me that the sociological account adequately addresses them either.

In response to Gregory Shaffer and Joel Trachtman’s “Interpretation and Institutional Choice at the WTO,” Professor Sungjoon Cho aptly reminds us to consider the sociological framework in international law as it sheds light on “institutional evolution and development concerns” largely overlooked by the rationalist framework. Professor Cho makes several important points. First, rationalism like any theory is not perfect. It cannot explain everything. Although it attempts to predict what rational actors might do, it can overlook what real actors “whose rationality is in fact bounded” do. Second, rationalism’s preference for textualist interpretation undervalues the possibility of endogenous change. Third, the rationalist lens fails to account for the normative biases inherent in a system where powerful countries bargain with less powerful ones. This normative blind spot along with normative concerns of “participation, transparency, accountability, and legitimacy” are given little attention by the rationalist framework.

Sociological communities can indeed “change what WTO members think of themselves and the nature of their perceived interests through “frames of reference.” But those frames of reference are dominated by the powerful and developed states. So while the constructivist framework is useful; it too has blind spots. The same questions of transparency, accountability, participation and legitimacy arise when one looks through a constructivist lens as when one looks through a rationalist one. Those questions are all the more important in this framing because the discursive dimensions of the WTO or any other institutional setting are often hidden from sight. Admittedly, the constructivist account acknowledges that the social discourse is symbiotic. No actor is immune from the influence of others. But one must suspect that some actors are more influential than others in constructing social norms.

Professor Cho seems less distressed about the dominance of powerful countries given this sociological lens because he argues that under the communitarian paradigm the developmental disparities amongst countries will be “intolerable.” I am not sure I understand why these disparities will be intolerable when one employs the communitarian paradigm. I can imagine such disparities persisting. For example, in the sociological setting Professor Cho describes a trade deputy who might, over time, become convinced of the value of liberalized trade through numerous conversations, interactions, and experiences on working committees and the like. Although I agree with Professor Cho that these normative considerations exist, it is unclear to me that the official is accountable or that her perception of her country’s interest is legitimate. How she came to that perception may not be transparent. It has likely been because of a series of conversations and work experiences that have all happened outside of public view. It may lead her to perceive her country’s interest in liberalized trade as aligned with the powerful states whose representatives she is surrounded by at her work experiences.

Thus, one of the very challenges that Professor Cho raises for the rationalist account must also be faced by the communitarian or sociological account. Indeed the sociological or constructivist account reveals that the process of endogenous change is plagued with transparency and legitimacy challenges. The sociological account itself fails to address how or whether the instruments of change remain accountable or legitimate.