Gary Bass Responds to Hathaway and Shapiro on Outcasting

Thanks to Duncan and Opinio Juris for the chance to discuss this work, and thanks to Oona and Scott for writing it. This is a wonderful article, provocative and learned, bursting with fresh thinking and rich in empirical observation. It was a pleasure to read. There’s a wealth of stuff to discuss.

I agree, both positively and normatively, with treating international law as law. Oona Hathaway and Scott Shapiro want to vindicate international law as real law, because it matters “in the way that real law must matter.” Oona and Scott complain that critics of international as law are relying on too-narrow a view of law enforcement: that it always be carried out by the regime, and that it is enforced through violence or the threat of violence. (As Weber writes in “Politics As a Vocation,” “Of course, force is certainly not the normal or the only means of the state–nobody says that–but force is a means specific to the state.”) Instead, Oona and Scott claim that regimes can outsource enforcement to another authority (externalized enforcement); and that enforcement can be done through “threat of exclusion,” or what they call outcasting. They want to rescue international law from the objection that it delegates the enforcement of its rule to states. Enforcement doesn’t mean violence; it can mean the denial of the benefits of membership. I would add that this is not just true of international law. Even in international security, there’s a lot of pressure on states that isn’t military or coercive. At any rate, war is a rare event, although it is always lurking as ultima ratio.

Yes, international law is law. Even a Chicago bombs-and-guns realist like Hans Morgenthau agrees, which may gladden hearts in New Haven. In his classic Politics Among Nations, Morgenthau readily grants that, while there are some spectacular violations, “to deny that that international law exists at all as a system of binding legal rules flies in the face of all the evidence.” Although his view of enforcement is more about brute force than Oona and Scott’s, and he sees international law as “primitive,” he does say that “during the four hundred years of its existence international law has in most instances been scrupulously observed”–a sentence that, if you didn’t know who had written it, sounds remarkably like Lou Henkin. More recently, Jack Goldsmith and Eric Posner start their book on the limits of international law by saying that it is in fact law. There’s no need to to rehash here the enduring debates about soft law, or what some anthropologists call an unorganized legal system, or aspirational law. But the view that international law is law still leaves us to wrestle with enduring tough questions about how international law is created (e.g., Bob Keohane’s discussion of hegemony), when it functions (e.g., Oppenheim says it requires a balance of power), why states will obey it at some times and flagrantly violate it at others, whether and when it functions as cheap talk or a pretext for policies chosen for more crass reasons, etc. One of the great strengths of this article is that it does not sidestep these questions. In a powerful section, Oona and Scott note that outcasting depends on the presence of private benefits for member states from cooperation with the legal order–or, I would say, on governments’ own understanding that such benefits exist. In their cogent example, Burma is already so isolated and so sanctioned that there’s not much else that outcasting could do.

The Burma example is well taken. The article doesn’t mention China, but I wonder what Oona and Scott would say about the world’s most important rising power: deeply imbedded in the global economy, with CCP rulers who seem to want to keep it that way, but so powerful that it is not especially subject to outcasting. I’ve written about China’s longstanding support for Robert Mugabe in Zimbabwe, which is an ugly case in point. Outcasting, like coercion–or any form of sanction, for that matter–obviously works less well against strong states than weak ones. (As Oona and Scott gently put it, “This is problematic from a fairness perspective.”) Indeed, some Chinese nationalist readers would think, at some point in the future, it will be the Chinese, not Western hegemonists, who determine who gets outcasted and on what grounds.

That’s a start. More soon.