Copyright (c) 2008 All rights reserved. http://works.bepress.com/sungjoon_cho Recent documents in Sungjoon Cho en-us Mon, 01 Dec 2008 10:09:40 PST 3600 http://works.bepress.com/sungjoon_cho/45 http://works.bepress.com/sungjoon_cho/45 Tue, 02 Sep 2008 12:21:00 PDT Toward an Identity Theory of International Organizations AbstractToday, we live in an era of international organizations (IOs). With more than two hundred IOs existing, they touch our everyday lives, ranging from air travel to flu shots. Such paramount significance notwithstanding, conventional international relations (IR) theories, such as realism, have failed to take IOs seriously. Conventional IR scholars view an IO as nothing but passive machinery created and controlled by states for their functional need. Under this position, while an IO may facilitate inter-state cooperation and reduce transaction costs, it would never have a life of its own. Conventional IR theories seldom offer a satisfactory explanation on a distinctive mode of institutional dynamics of an IO itself in which a specific IO, as a separate and autonomous organic entity, grows, evolves and eventually makes sense of its own existence. This is an unfortunate deficiency in light of ever-increasing significance of IOs in the contemporary world.In this Essay, I offer a novel perspective which attempts to overcome the aforementioned deficiency. Drawing on the "identity theory" established by Erik Erikson, this new perspective captures an IO's institutional development in which a dynamic process of the formation of its unique identity unfolds. Based on its autonomy qua organization, not merely as an instrument of states, an IO forms its organizational identity as it experiences an "identity crisis" in a similar way in which a human individual does. States create an IO to implement a certain function. Thus, an IO holds a default purpose which its creators (states) have programmed into it. However, an IO's retention of such programmed purpose results from a mere identification with its creators, not from the formation of its genuine identity which is formed at a subsequent stage. An IO's organizational identity is formed only after it achieves a necessary level of institutional maturity as a result of incessant interactions and communications with its environment (society). This Essay also applies the theory of IOs' identity formation to the World Trade Organization (WTO). It demonstrates how the old identification of the WTO's predecessor, General Agreement on Tariffs and Trade (GATT), with a narrow meaning of trade confronted new external challenges involving non-trade values, such as protection of the environment and human health. It argues that the WTO's identity formation is to strike an institutional equilibrium between traditional trade values and these non-trade values. Sungjoon Cho International Law International Trade Organizations http://works.bepress.com/sungjoon_cho/44 http://works.bepress.com/sungjoon_cho/44 Fri, 23 May 2008 14:33:22 PDT Sungjoon Cho International Trade http://works.bepress.com/sungjoon_cho/43 http://works.bepress.com/sungjoon_cho/43 Tue, 04 Dec 2007 14:51:15 PST Sungjoon Cho http://works.bepress.com/sungjoon_cho/40 http://works.bepress.com/sungjoon_cho/40 Thu, 18 Oct 2007 11:18:07 PDT Sungjoon Cho International Trade http://works.bepress.com/sungjoon_cho/39 http://works.bepress.com/sungjoon_cho/39 Tue, 19 Jun 2007 14:26:48 PDT Sungjoon Cho http://works.bepress.com/sungjoon_cho/38 http://works.bepress.com/sungjoon_cho/38 Tue, 19 Jun 2007 14:23:07 PDT Sungjoon Cho http://works.bepress.com/sungjoon_cho/37 http://works.bepress.com/sungjoon_cho/37 Tue, 19 Jun 2007 14:19:00 PDT Sungjoon Cho http://works.bepress.com/sungjoon_cho/36 http://works.bepress.com/sungjoon_cho/36 Wed, 13 Jun 2007 14:54:02 PDT 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. 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. Granted, conventional IR theories may provide useful insights on an inter-national dynamic among creators (states) of an IO. Many scholars have attempted to explain, and justify, such a dynamic through varying theoretical lenses, such as neo-realism and neo-liberalism. Nonetheless, they 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. 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. Therefore, this paradigm shift in perceiving an IO from a passive, inorganic tool to an autonomous, organic entity provides us with a theoretical foundation under which we can delve into a unique and case-specific institutional development of an IO. We often label, classify and identify some international organizations as a "trade" organization and some others as an "environmental" organization. Then, what makes a certain organization a trade organization, and some other an environmental organization? Among other things, the "purpose" of an organization tends to determine its identity. A trade organization is so named because it pursues free trade, and an environmental organization is so labeled because it aims for environmental protection. Yet the formation of an IO's purpose, and thus identity, is not a static event. Like a human individual, such a formation is subject to a certain developmental process over a period of time. In developmental psychology, a person's identity is formed ("identity formation") after it suffers from a certain crisis ("identity crisis"). As one grows old, she experiences an ever-broadening horizon in her surroundings and face her "historical moments" in which she agonizes over what she lives for and what she should become. Only after such an identity crisis can her true identity be formed and the purpose of her life established. This identity theory in developmental psychology enlightens the institutional development of an IO. As it evolves, it interacts with its environment, and continuously defines and redefines its institutional raison d'être. 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. Against this background, this Article attempts to hypothesize an IO's institutional development qua organization from the standpoint of identity formation. The Article also tests the hypothesis by applying it to the World Trade Organization (WTO). Part II first discusses a theoretical foundation of the whole analysis, i.e., the autonomy of an IO. An IO's identity cannot be constructed without autonomy from its members (states). The Part adopts the views of organizational sociology, which focuses on autonomy of organizations, unlike the conventional IR theorists who regards IOs as a mere tool of states. Part III then constructs a theory of identity formation of IOs. The Part first delineates various parameters of identity formation, such as history, the environment, goals and technology. It then observes that the process of identity formation is a normative one which is operated by rules and legal discourse. Part IV applies this theory of identity formation to the WTO. The Part demonstrates how the GATT's old identification with a narrow meaning of trade embraced new external challenges on non-trade values, such as protection of the environment and human health. It argues that the WTO's identity formation is to strike an institutional equilibrium between traditional trade values and these non-trade values. Part V concludes. Sungjoon Cho http://works.bepress.com/sungjoon_cho/35 http://works.bepress.com/sungjoon_cho/35 Wed, 13 Jun 2007 14:42:50 PDT Although competition has been an ideological beacon of economic governance ever since the birth of the Union, it has largely been an internal affair. External competition from foreign producers has failed to be factored into antitrust scrutiny. On the contrary, the government, through its trade policies such as antidumping remedies, has often hampered foreign competition to protect domestic producers at the expense of all the benefits that foreign competition might bring to the economy. Antidumping remedies tend to create a legal cartel: they fix the import prices and generate non-price predation by petitioners. However, the Federal Trade Commission (FTC)'s potential antitrust mission over trade remedies is severely obstructed by a judicially created antitrust immunity labeled the "Noerr-Pennington doctrine." As a legal reincarnation of political pluralism under the Warren court, this doctrine expansively immunizes antidumping petitioners from any antitrust investigations over their potentially trade-restraining behaviors. Against this backdrop, I argue in this Article that the failure to allow antitrust oversight when implementing trade remedies should be rectified by means of judicial and administrative intervention. I do not propose herein a repealing of the current antidumping statute: such a drastic measure would be politically infeasible in the current protectionist atmosphere of Congress. Instead, I take a more modest yet realistic stance: sanitizing antidumping remedies by bringing certain abusive behaviors in the antidumping proceeding, such as deliberate misrepresentations of facts and data, under antitrust disciplines. In order to prevent such abuse of antidumping remedies by rent-seekers, courts should interpret the currently narrow definition of the sham exception broadly enough to effectively foreclose non-price predation. At the same time, the FTC, under its vested antitrust authority, should reinforce its surveillance and enforcement activities to guard against the abuse of trade remedies by domestic producers. In the long-term, these targeted judicial and administrative interventions will eventually lead the public, and legislators alike, to rethink the antidumping statute itself. Sungjoon Cho http://works.bepress.com/sungjoon_cho/34 http://works.bepress.com/sungjoon_cho/34 Wed, 13 Jun 2007 14:23:31 PDT Decisions of the WTO tribunal (Court) on sensitive disputes, such as those concerning human health, have often caused resentment from some groups, besides losing parties. Beneath this disapproval against the Court lies an image of a Dworkinian Hercules which capriciously renders its own answers on risks and science. In judging which party should win the case, this Hercules assesses parties' arguments and evidence on risks and regulatory responses through a technical rule labeled the "burden of proof" (BOP). Yet, the BOP is more of the Court's burden than of parties' burden (who to prove) in that the final outcome of the case hinges eventually on those elements which the Court requires parties to prove (what to prove) as well as whether the Court approves that a party has discharged its BOP and allows the burden to shift to the other party (whether to prove). However, the Court, with its judicial authority, employs the BOP in a way which defines and constructs its own version of science to deliver a definite answer to litigants. As long as the Court plays the role of Hercules by handing down actuarial justice on issues of high controversy, such as risks and science, whatever decision it makes will hardly satisfy the parties concerned, at least the losing party, and thus never fully resolving their disputes. If the Court's own answer (substantive justice) cannot put an end to parties' antimonial struggle, the Court should contemplate guiding parties to discover the solution between them via constructive regulatory dialogue. In other words, the Court, instead of throwing out its own "right answer" in front of already dogmatic parties, might encourage them to fulfill their dialectical dialogue through talking to, deliberating with, and enlightening each other. This nuanced judicial posture can greatly mitigate any unnecessary adversarial tensions, which will in turn secure a certain space for accommodation or recognition of different regulatory positions. The Court can achieve this new goal by transforming its current substantive hermeneutics over the BOP into a "procedural" one. The Court can lead parties to present different probative evidence, i.e., evidence substantiating the procedural integrity of a measure, from the conventional one, i.e., evidence adduced to prove that the measure was scientifically valid. Sungjoon Cho