Outcasting: Enforcement in Domestic and International Law
We are grateful to Duncan and Opinio Juris for the opportunity to discuss our article. Here we attempt to lay out our central claim and the key implications we believe it has for the organizing questions in the field of international law.
Our article proposes a new way to think about law enforcement. We argue that law enforcement need not involve the use or threat of physical force wielded by actors internal to the regime (such as police). Law can instead be enforced through what we call outcasting—denying the disobedient the benefits of social cooperation and membership.
Outcasting is much more than simple shaming or shunning. Consider the World Trade Organization. The WTO uses external outcasting to enforce its rules. The enforcement regime of the WTO is devoid of any threat or use of physical force. As one commentator aptly put it, “The WTO has no jailhouse, no bail bondsmen, no blue helmets, no truncheons or tear gas.” Instead, enforcement entails denying the violating state the benefits of cooperation (access to the full benefits of the trade-promoting rules of the GATT), in proportion with the harm it has itself done. Moreover, the rules are not enforced internally—that is, by the officials of the WTO itself. Yes, the WTO has a compulsory dispute resolution system. But the decisions rendered by that system are enforced through authorized retaliation by the aggrieved state party. It is the states, not the WTO itself, that impose the sanction. Enforcement is thus external to the legal regime. Enforcement is limited to specific, WTO-approved, retaliatory trade measures taken by the aggrieved parties after a process of adjudication. Moreover, the WTO is far from alone—enforcement through outcasting is used by regimes as diverse as the Montreal Protocol, Chapter VII of the U.N. Charter, the Universal Postal Union, customary countermeasures, and the European Convention on Human Rights.
What are the stakes of the claim that outcasting is properly understood as a form of law enforcement? We believe that it opens up a new way of seeing international law and casts the central organizing questions of the field in a new light.
A central focus of the field of international law today is whether international law is effective. Whether the law is effective is thought to depend in significant part on whether it is enforced. But if outcasting is enforcement, then international agreements that lack enforcement through physical force do not necessarily lack enforcement. Enforcement through exclusion from the benefits of social cooperation can be as powerful at motivating states to comply with the law as any physical force—and sometimes even more powerful. Moreover, as we aim to show through developing many different variations on the outcasting model, outcasting is multifaceted. Different forms of outcasting are better suited to addressing different sets of challenges. This opens up a new world of possibilities for international law—and a host of new questions for scholars to answer. Why do some variations exist in some contexts and not in others? Which variations are most effective in which circumstances? Are there further variations that could be used to respond to challenges not already met by existing forms of outcasting? Are there areas of international law where outcasting could be better tailored to effectively enforce the law? What barriers exist to making those changes and how might they be overcome?
Outcasting also places the longstanding debate over sovereignty in a new light. The recognition that international law often relies on outcasting rather than physical force turns the sovereigntist critique on its head. If international legal regimes are best understood as arrangements that generate community benefits for member states and impose discipline through outcasting (excluding lawbreakers from the benefits of membership), then international law does not have the power to rob states of their sovereignty. Instead, international law only has the power to take away the very benefits that it has itself generated. If that is true, then states that refuse to join international agreements out of a fear that doing so will undermine their sovereignty are simply voluntary outcasts.