Outcasting as Inclusion and Exclusion

by James Gathii

Profs. Hathaway and Shapiro’s article, “Outcasting: Enforcement in Domestic and International Law,” is a very provocative and original piece of scholarship. Outcasting as a central mode international law enforcement has not received such a sustained and systematic study as they have. I am delighted to add a few thoughts to this discussion with thanks to Prof. Hollis for the opportunity.

As Hathaway and Shapiro note, countries that contribute a great deal to a regime are less likely to be outcast. It is no surprise that such countries are also powerful economically, militarily and otherwise. Yet there is more. Outcasting can be conceptualized beyond its immediate functional purpose of exclusion from the enjoyment of the benefits of community membership. Inclusion and exclusion from a community or regime is as much a function of power relations, as it is of cultural relations as well. Thinking about international law norms beyond their functional purpose, makes it possible to see the process of inclusion and exclusion as a way of framing and constructing national and international interests as well as what constitutes a community or a regime.

Thus as Antony Anghie has shown, by defining universality in Eurocentric terms, ancient jurists such as Francisco de Vitoria justified the exclusion of non-European peoples from the benefits of membership in the community of nations. This in turn laid down a justification for their colonization. Cultural differences between Europeans and non-Europeans for these early jurists defined who enjoyed the benefits of the community of nations. Societies without the western form of the State and Law were regarded as backward, as uncivilized and as such excludable.

If we accept Anghie’s thesis that this process of creating community is not simply or narrowly functional, then it is possible to see outcasting’s  intimate connection between our cultural experiences and our norms about who enjoys the benefits of community and who is excluded. Often, the exclusion from community benefits is accompanied by labels of deviance, perversion and outsideness. Thus the designation of outsiders such pirates as hostis humani generis (enemies of all mankind) or stereo-typed terrorists, (a popular example of an archetypical terrorist is a turbaned and robed dark glass wearing Arab), necessarily comes with a charge of moral and cultural indignation. Thus outcasting here provides a ready-made heuristic that readily connects the outcast with moral and cultural degeneracy which in turn justifies exclusion from community benefits.

In this sense, outcasting is more thoroughgoing – it goes beyond exclusion from the benefits of social cooperation. By designating certain individuals or groups as outsiders since they do not conform to, or are not amenable to community  norms has sometimes justified extreme measures. Gerry Simpson’s 2004 book, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order, traced a variety of outlaw States used in a variety of international legal regimes and debates that demonstrate the continued valence of the outcast trope. Simpson traced tropes such as constitutionally illiberal states; States that repudiate rules of the international legal system because of its incompatibility with the core values of such states; and outlaw states, designated as genocidal or gross violators of core security rights. As Simpson demonstrated, exclusion from community membership as well as military intervention are two familiar enforcement techniques to nudge such States to re-enter the international community reformed.

For many generations now, international legal scholars from non-western countries have engaged problematic aspects of the outcasting trope. The best example is that of Taslim Elias Olawale from Nigeria who rose to become President of the International Court of Justice. His 1974 book, Africa and the Development of International Law, is a classic attempt to re-write international legal history to demonstrate, contrary to a Eurocentric telling, Africa’s participation in forging rules of international law.  For Elias, it was not enough that post-colonial African independent states were sovereign equals, it was also important to correct the outcast tropes that had justified colonial rule. His mission like many international law scholars of his generation from non-European countries was to challenge images of non-European inferiority, backwardness and servitude. Elias’ historical account turned Africa’s outcast image on its head. He demonstrated contrary to Eurocentric accounts, Africans had States, Laws, Commerce and contact with Europe and that they had participated in the formation of rules such as those relating to the protection of ambassadors.

In short, outcasting as a form of enforcement enunciates more than a narrow functionalism – it elicits broader questions of who is the community and what are its values and demonstrates that such values are not necessarily homogeneously shared or universal. If we accept this account, then perhaps we can say that Hathaway and Shapiro are correct primarily in a functional sense that international law does not rob states of their sovereignty. However, in the broader sense I have used the term outcast, one can raise doubt that international law does not rob states their sovereignty. That, I think would only be possible if the international regime in question truly reflected universal values. That said, I really enjoyed Hathaway and Shapiro’s important contribution to the discussion of the enforceability of international law.


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