VJIL Symposium: Sungjoon Cho Answers to Kelly, Shaffer, and Trachtman

[Sungjoon Cho is currently a Visiting Professor of Law at Northwestern University School of Law. He is also Professor of Law and Norman and Edna Freehling Scholar, Chicago-Kent College of Law.]

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.

First of all, I would like to thank Profs. Shaffer, Trachtman and Kelly for their valuable comments my Article, “Beyond Rationality: A Sociological Construction of the World Trade Organization.” I feel fortunate to have these rich and provocative exchanges on this important issue.

Let me start my response to their comments by reiterating that I do not intend to question the merits of Profs. Shaffer and Trachtman’s substantive arguments. The authors’ institutional scrutiny is analytically clear, rhetorically powerful, and offers a simple yet powerful heuristic on the WTO and its affairs.

My critique centers on their methodological framework, which many International Relations (IR) scholars, such as Robert Keohane and Alex Wendt, would categorize as “rationalism.” Profs. Shaffer and Trachtman basically draw on the “comparative institutional analysis” developed by Neil Komesar, which focuses on the availability of alternative choices in understanding the development of a particular institution. In general, this approach belongs to the school of “new institutional economics” espoused by Douglas North and Oliver Williamson. According to this theory, all institutions are invariably accompanied by transaction costs and therefore can be replaced by alternatives. In the same vein, the WTO is a welfare-maximizing contract within this theoretical framework (Shaffer & Trachtman, p. 111).

As the authors might agree, no framework is perfect and rationalism is no exception. Rationalism inevitably leaves some paradigmatic blind spots, which tend to obscure a more complete understanding of the WTO. I maintain that we need to identify those blind spots, and that an alternative framework, such as the one I propose here, could brighten our picture of the WTO. I do not argue for “taking sides.” In fact, I also employed a law and economics methodology in another paper addressing a different issue.

Granted, Profs. Shaffer and Trachtman do acknowledge the value of ideational (non-rationalist) parameters, such as “ideas” and “community.” In fact, their mission statement explicitly aims for the exploration of a “law and society” perspective. Nonetheless, their work gives only passing attention to social dynamics. It does not appear that their analysis seriously engages the social, or sociological, aspects of the decision-making process. For example, when they mentioned the “interpretive community” they could have engaged in substantive discussions that involve judicial internalization or the role of interlocutors and norm sponsors. In contrast, those “choices” correspond to consequentialist considerations informed by efficiency concerns. Therefore, it is hard to accept that they view WTO norms as a discursive device powered by the WTO members’ shared understandings or behavioral expectations.

Two last points. First, although my Gemeinschaft model certainly focuses on “endogenous” parameters, it does not envision a “closed” system. Any organic system, be it a human or an institution, must be open to and interact with the environment to survive. The evolution of the WTO’s community is in a sense a result of its institutional responses to changes of its environment. Second, it is true that different individuals and states have differing values, and that this can make it difficult to define institutional norms. At the same time, however, norms can be understood as a collective representation of values and identity that are “constituted” in a community, not merely as a pre-programmed product which might be “measured” by a legal equivalent of the Mètre des Archives.

Prof. Kelly also raised an important issue that is related to the legitimacy of the WTO’s community. It is vital to recognize that power and resources are not distributed evenly among members of the WTO community: some are the titular “burdened societies” and others “hegemons.” While the sociological premise that the WTO’s community is a community of law tends to temper this innate disparity among WTO members, such disparity might still distort, even manipulate, legal discourse among members. For example, burdened societies, such as the least-developed countries, would simply have no legal capacity to participate in various modes of WTO discourse, be it a WTO adjudication or a committee review. Also, hegemons, such as the United States, might be tempted to establish the so-called “global hegemonic international law” via the WTO.

This is why all WTO members, as participants in WTO discourse, must be communicatively competent, that is to say, capable of speaking to, questioning and deliberating among one another, which is analogous to the Habermasian “ideal speech situation.” According to Habermas, a “jurisgenerative communicative power” can only originate from “undamaged intersubjectivity found in nondistorted communication.”

Interestingly, the recent development of sophisticated global sourcing has altered the conventional political economic dynamics. With global sourcing, economic interests of both domestic business (such as retailers and domestic consuming industries) and international business (such as foreign producers and logistic managers) have dramatically converged. Now, agreements between developing countries and private businesses investing in these countries can coalesce around common economic interests. This phenomenon can effectively mitigate some legitimacy concerns.

In sum, Profs. Shaffer and Trachtman structure the WTO’s operation via institutional-interpretive “choices” and “consequences” thereof, while I do so via ideational parameters, such as “norms” and “discourse.” Both paradigms have blind spots. My Article attempted to highlight theirs. Their responses as well as that of Prof. Kelly highlighted mine. Again, I thank them for their sincere engagement.