Hathaway and Shapiro Respond

by Oona Hathaway and Scott Shapiro

We want to thank Gary and Samantha for offering such interesting insights.  We will not be able to do them justice, but let us at least offer a few brief words in response.

In his latest post, Gary calls on us to say more about when outcasting will be effective at changing state behavior, calling for both process tracing and empirical analysis.  We take a first step in this direction in the article.  We argue that there are many forms of external outcasting and the differences between them are not random. They are instead quite systematic—differences in outcasting regimes can, we argue, be traced to differences in the legal rules to be enforced. We also aim to explain why the use of certain regimes in certain circumstances is to be expected.  From there we work through several challenges and how they are met in the real world—and we describe in some detail eight variations on outcasting and describe the specific international legal regimes that fit them.  Is there more that can be done? Certainly.  But we are not the only ones who could do this. Indeed, we very much hope that others will be inspired to put these ideas to the test in the ways Gary describes.

In his first post, Gary invited us to say a few words about, as he puts it, “the world’s most important rising power,” China. There are two aspects of outcasting that China illustrates well.  First, as we point out toward the end of the article, outcasting favors the powerful.  The more a state contributes to the collective benefits shared by all the members of a particular legal regime, the harder it is for the other member states to discipline that member through outcasting.  China is an excellent example.  It is difficult for any country to outcast China by, for example, putting in place trade sanctions.  China is now the world’s second largest economy.  No country—not even the United States—can close itself off from China without itself suffering severe consequences.  Second, outcasting often relies on cooperation among outcasting countries.  A decision by one country or even a group of countries to deny a law-breaking state the benefits of social cooperation and membership may not be as effective if another country is ready to replace the lost benefits.  As Gary showed in his recent and very powerful article, Human Rights Last, China is often happy to do business when no one else will.  As Gary shows, when the rest of the world sought to isolate and punish the regimes of North Korea, Myanmar/Burma, Sudan, and Zimbabwe, China showed up ready to do business.  This severely undermined the efforts of other countries to outcast the governments that had denied their citizens the most basic human rights.  All of this goes to illustrate a broader point: outcasting, for all its strengths, is not a panacea; like other law enforcement models, it has its limits. Those limits can be understood, explained, and, in some cases (but not all), addressed.

Turning to Samantha’s post, she begins by questioning our philosophical argument as to the relationship between legality and enforcement.  As she rightly notes, we say relatively little about this point.  We do so because engaging the argument of whether enforcement is necessary to law is a philosophical discussion of lengthy pedigree on which we do not wish to focus.  Our view is that it is enough that many do believe that enforcement is necessary to law.  We thus assume arguendo that enforcement is necessary to law.  We then proceed to show that international law is enforced—often through outcasting—and therefore absence of enforcement should not be a reason for concluding that international law is not law.

The second half of Samantha’s response focus on our argument about the enforcement of international law.  In her first objection, she notes that it is difficult to argue that that a single account fits all of international law “in view of the extreme diversity of international legal norms in terms of sources, degree of normativity and scope.”  She is right that we are making the arguably audacious claim that outcasting applies across diverse international legal regimes.  Indeed, we think that claim is important to the success of the article.  That said, we do not mean to claim that every international legal regime is always enforced or that enforcement always takes the form of outcasting.  Indeed, we show that a few international legal regimes are enforced through internal physical force, some though external physical force, and many (indeed, a diverse array of regimes) through outcasting.  Samantha’s second objection focuses on the distinction between external and internal.  By internal enforcement we mean enforcement by the regime itself—that is, through designated international bureaucracies.  To determine what is internal and external, therefore, one must reference the particular regime.  Enforcement of the GATT, therefore, is external—the governments of the states that do the outcasting sit outside the bureaucracy of the WTO.  Third, Samantha points out that more could be said about states and state sovereignty.  We agree and our next project aims to make further progress on this point.  Fourth and finally, Samantha argues that  “the complex nature of states and their relationship to their individual constituents should prevent us from developing explanations of the enforcement of international law by analogy to the way one explains the enforcement of domestic law by individuals.”  Here we have to disagree.  A key aim of this project is to suggest that there is a great deal to learn by thinking about domestic and international law not as entirely different but as sharing important properties.  This is not to suggest there are no differences—there are many.  But the field has for too long focused on these differences.  There is room, we think, for a different approach.

http://opiniojuris.org/2011/11/15/18036/

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