Institutions and the rule of law: a new voices panel.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

This panel was convened at 1:00 p.m., Thursday, March 29, by its moderator, Richard Gardner of Columbia Law School, who introduced the panelists: Sungjoon Cho of Chicago-Kent College of Law; Jeremy Farrall of Australian National University; Susan Notar of the American Society of International Law; and Christopher Whytock of the University of Utah, S.J. Quinney College of Law.


Sungjoon Cho *


Conventional international relations (IR) theorists, such as realists, neo-functionalists, or regime theorists, view international organizations (IOs) as passive tools with which to achieve certain goals. Although an IO may facilitate inter-state cooperation and reduce transaction costs, it does not have a life of its own. (1) Therefore, conventional IR theorists focus mostly on the creation of an IO and inter-state cooperation leading up to the creation. As a result, an IO's institutional change remains rather an "under-studied" and "under-theorized" issue in the conventional international relations (IR) framework. (2)

Conventional IR theories thus seldom offer a satisfactory explanation on an institutional dynamic under which an IO, as a separate and autonomous organic entity, grows, evolves, and eventually makes sense of its own existence. Yet by focusing on an IO's autonomy, we can expect to capture the dynamic operation, or evolution, of a specific IO qua organization, predict its future trajectory and even launch various reform agenda through an identification of specific conditions under which specific IOs can perform effectively in specific stages of their institutional development.

In this regard, the identity theory in developmental psychology enlightens the institutional development of an IO. As an IO evolves, it interacts with its environment, and continuously defines and redefines its institutional raison d'etre. In this process, the organization often undergoes a daunting situation under which an old structure has become increasingly incapable of coping with new challenges from the new environment. Confronting this crisis, it may reconfigure its institutional setting by adjusting its teleology to the new environment. Only then can its institutional existence continue to hold relevance, and its genuine institutional identity be formed.


The Identity Theory in Developmental Psychology

Eril Erikson's theory of identity formation focuses on the resolution of certain "crises" that occur in each stage of development, which signify certain "conflicts" between "identification" with the environment (such as parents and peers) and emancipation therefrom. (3) A child is "deeply and exclusively 'identified' with his parents." (4) Yet adolescents "are sometimes morbidly, often curiously, preoccupied with what they appear to be in the eyes of others." (5) Erikson depicted the estrangement of this process as "identity confusion." (6) The final identity, although it includes all significant identifications with key figures of the past, also processes them in a way that builds a unique yet coherent whole. (7) However, during the final stage of identity formation, adolescents tend to suffer greatly from role confusion. (8) Past multiple identifications--and the roles they prescribe--often conflict with each other. This disturbance is tantamount to a crisis or "a war within themselves." (9) Only after adolescents weather this Strum und Drang do they acquire a sense of "knowing where [they are] going." (10)

The Identity Formation in International Organizations

As adolescents do in their identity formation process, IOs also experience certain socialization pressures from their environment and are forced to diversify their institutional selves into multiple roles that should eventually be integrated into an internally coherent identity. Naturally, identity formation is not a smooth process, for both a human being and an IO. It may be accompanied by confusion, fatigue and stress: it is a crisis.

For an IO, identity crisis can be translated into a normative process. As discussed above, identity-forming organizational changes necessary for an IO's survival are teleological and constitutive since they confirm or redefine its organizational goals and thus regulate behaviors of members and the organization itself. This process is best captured by norms and legal discourse within an IO. Intersubjective or reflective discourse and interaction among members, as well as between members and the IO itself, are not only intermediated by but also generate norms. Norms provide and change the syntax and grammar of an IO's operation.

Norms and legal discourse operate the identity-forming process by using and controlling the technology of an IO. Forming an IO's identity means, from a normative perspective, establishing institutional criteria of acceptable behaviors or policies which characterize the IO. These criteria may be formulated by mobilizing its software (e.g., interpretation), hardware (e.g., committees), and humanware (e.g., experts). For example, the identity of the World Bank, a development organization, as stipulated in Article 1 of its charter (Articles of Agreement), has been transformed via teleological interpretation from an organization tackling a narrow economic well-being calculated by per capita income, to one that addresses a more comprehensive welfare including sociocultural aspects, such as women, the environment, education, and health. (11)


While a pro-trade bias was faithful to the GATT's identification with a trade agreement, such a bias continuously invited criticism from its environment, in particular, civil society and environmental organizations. The GATT's efforts to fix this bias and achieve its more mature identity gathered critical momentum in the launch of the WTO. The WTO's mission statement under the preamble of its charter emphasizes "sustainable development." It has become obvious that due consideration and investment for non-trade values, such as the environment and human health, should be made within the WTO in order to achieve any development which is sustainable. The creation of the Trade and Environment Committee and special side agreements, such as the Agreement on Technical Barriers to Trade (TBT) and the Agreement on Sanitary and Phytosanitary Measures (SPS), can be understood as the WTO's effort to grow out of the pro-trade bias and form a more mature and responsive identity as a "trade" organization. (12)

The WTO continuously receives demands for these regulatory roles and is thus exposed to different role identifications with a labor or environmental organization beyond a trade organization. Perhaps the WTO might be a victim of its own success. The unprecedented success of the GATT/WTO regime and, in particular, its dispute settlement mechanism tends to attract many social issues to the regime. (13) This gravitational force from the WTO's environment to the WTO forces it to undertake diverse role expectations.

The WTO's identity formation or identity achievement is inseparable from its recognition of inevitable connectedness to its environment. The WTO is an open system and not a self-contained regime. (14) Granted, the WTO interacts with, responds to, and is even influenced by its legal environment. Nonetheless, the WTO's openness as an organization should not be confused with its autonomy or "autopoietic" status preserving its legal integrity or "operative closure." (15) In other words, the WTO's central identity is as a trade organization, and its main concern is the rule of law in the area of international trade. Other areas of law, such as human rights law or international environmental law, could and should not become the law of the WTO per se. The WTO may accommodate these non-trade values by voluntarily "altering" its own internal legal and institutional choices in the course of its evolution. (16) Yet these non-trade values must not be "imposed" on the WTO externally as they force the WTO to accept norms and consequences that are inconsistent with its main identity. (17)

A desirable form of identity formation for the WTO will thus be to attain an institutional equilibrium between trade and non-trade (social) regulatory values without losing its identity as a trade organization. This equilibrium means reconciliation between trade and social values from the WTO's perspective as a trade organization. This reconciliation should be based on, and loyal to, the WTO's institutional capacity, its core technology, and its own path dependency. In other words, the agenda should be "trade and labor or environment," not "labor or environment and trade." The WTO's core technology, such as its software (jurisprudence) and hardware (committees), is capable of performing such reconciliation.


My presentation argues that an IO, like a human being, is prone to the process of identity formation based on its autonomy from its members (states). As it undergoes various institutional changes, its old identifications with certain goals or functions may encounter a new set of identifications with other goals or functions and thus experience confusion as to its true identity (identity crisis). An IO can achieve a consistent and coherent institutional self (identity) by striking a balance among these multiple identifications under its parameters, such as its environment and technology. Yet an IO may also fail to achieve its identity by insulating itself from its environment (foreclosure), of being...

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