More Gary Bass on Hathaway and Shapiro

Oona and Scott’s article is meant to be an opening salvo. But it would be helpful to see more positive empirical evidence. I don’t just mean that I’d like to see more cases of non-traditional enforcement than medieval Iceland and classical canon law, although I would, and I’m sure Oona and Scott would too. (Still, has there ever been a better name for a national assembly that the Allthing?) To guide future empirical research, we need to see the observable implications. Here’s what it will take to convince skeptical social scientists of the importance of outcasting as a real driver of state behavior: a regime changing its policy to avoid being outcasted, or to rejoin the fold of respectability after suffering outcasting. (Oona is well placed to do this kind of work; she has been a leader in the international law field in demanding rigorous empirical tests.) This requires a detailed reconstruction of the decisionmaking process inside a government, which is not so easy; governments work hard to make sure that we in the audience see only the ideal motive, not the real one. We would want to look for (non-biased) archival records or convincing interviewing that shows that, in secret deliberations where actors were not just posturing for the benefit of an outside audience, actors argued for changing a policy because of a fear of being outcast, and these arguments won the day.

This process-tracing could throw interesting light on some enduring debates about state motives for compliance with international law. Are states acting purely on a materialist or instrumental calculation of benefit, or on a more sociological sense of their identity (cf. Katzenstein, Wendt, etc.)? Is their behavior shaped by an internalized sense of normative or legal obligation (something like opinio juris in customary international law)? In their discussion of naming and shaming in human rights, Oona and Scott seem closer to the instrumentalist than the normative explanation.

Much as I liked the article, I’m not convinced by Oona and Scott’s critique of what they call “the Brute Force objection.” I am impressed with their demonstration that there are forms of law that do not rely on force or the threat of force. But international relations is different from domestic politics because, of course, in anarchy, states can always resort to self-help–including, above all, the use of violence. As Hobbes wrote, “in all times, Kings, and Persons of Soveraigne authority, because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators; have their weapons pointing, and their eyes fixed on one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their Kingdomes; and continuall Spyes upon their neighbours; which is a posture of War.” So it seems appropriate to maintain an insistence on the importance of the use of coercive power. Weber correctly wrote, “The decisive means for politics is violence.” To frame it another way, the “Modern State Conception” of law may not be the only form of law enforcement, but what if it’s a vastly more powerful form of law enforcement? The null hypothesis here would still be that outcasting is less effective than coercion at changing state behavior. (The article does mention this,, pp. 342-44.)

International law is a form of power, and Oona and Scott urge us to take this seriously. Joe Nye famously defined power as “the ability to effect the outcomes you want, and if necessary, to change the behavior of others to make this happen.” So how well does outcasting fare at that? Or, to put it another way, under what circumstances will outcasting be effective at changing state behavior? Let me give one discouraging example. (My point is not the chump game where realists come up with a biased sample of cases showing the futility of international law, and legalists select their own biased sample of cases showing the success of international law; rather, I want to consider the universe of cases.) In 1996, India rejected the Comprehensive Test Ban Treaty (CTBT). The global consensus was clear: the UN General Assembly voted 158-3 in favor of the CTBT. India was one of those three, joined only by neighboring Bhutan and Muammar Qaddafi’s Libya. Indian leaders knew perfectly well that they were risking a deepened international isolation and a serious loss of respectability and credibility. One could plausibly say there were costs to being outcast. But India did it anyway. India’s refusal to allow its burgeoning nuclear capacity to be kneecapped by international law was not just a matter of realpolitik (as a check against China, Pakistan, and America) but also of identity. Playing to domestic resentments, BJP politicians lambasted the CTBT as a symbol of Indian resistance to the Western hypocrisy of “nuclear apartheid” and neocolonial domination. As George Perkovitch writes, for the Hindu-nationalist BJP, a tested nuclear arsenal would “deliver to Hindu India the international status it deserved as a great civilization and nation.” And India has gotten away with it: the Clinton administration couldn’t turn its back on such an important country, and the junior Bush administration has accepted India’s nuclear status. That’s the kind of challenge that outcasting is up against.