The Sovereigntist Premise of Hathaway and Shapiro’s Outcasting

Outcasting is an important contribution to international legal theory and an engaging read.  But I wonder if the theory isn’t limited by its assumption that sovereignty continues to be foundational to international law.  The article closes with this:

It is impossible to overemphasize the importance of state sovereignty in international law. The international legal system is both created by and creates sovereign states. A treaty, for example, is “an international agreement concluded between States.” Similarly, customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. At the same time, the very idea of what it is to be a “state” is, in a very real sense, a legal construction—one based on physical facts, to be sure—but nonetheless constructed through shared understandings. Perhaps the most important of these shared understandings is that the quintessential defining characteristic of a “state” is its monopoly over the legitimate use of force within its geographical boundaries. International law thus creates, protects, and reinforces state sovereignty through various legal rules including the obligation not to use aggressive physical force against another sovereign state except in rare circumstances. International law cannot primarily rely on internal physical force against states as a means of law enforcement, because to do so would threaten to collapse the very idea of what it is to be a “state” and thus eliminate the precondition for the existence of international law in the cause of enforcing it.

I think that many international legal theorists would take issue with this premise, one that is perhaps surprisingly conservative in its conception of international law.  The “shared understandings” of statehood are morphing so as to shrink the spaces of sovereign insulation.  To paraphrase Wendt, sovereignty is what states make of it, and states’ identity as such has come to comprehend a downsized version.  There are lots of ways in which international law is degrading sovereignty.  I think it’s possible now to imagine the internal enforcement of international law along the lines of the Modern State Conception — not all advocates of international law “tend to let the conversation drop at this point.” (276).  The construction of sovereignty would hardly stand in the way.

The more pressing challenge to Oona and Scott is how the theory applies to actors other than states and to norm systems other than as generated by states.  Unless the theory hews to a rigidly formalist conception of international law — to include, as the paragraph above implies, only treaties and custom satisfying the traditional doctrinal requirements of wide practice and opinio juris — it will be incomplete if it cannot account for other forms.

How does outcasting apply in the context of soft law, for instance?  With its heavy association with exclusion (reinforced by the Icelandic and canon law analogues, in which outcasting took the form of exile and excommunication respectively), the theory would seem to have a harder time with law occurring outside formal institutions and treaty regimes.  Does the theory work only with isomorphic actors?  The piece characterizes shaming by NGOs in the context of human rights violators (at least state violators) as a kind of outcasting (at 309), but the example doesn’t seem to fit with the rest of the model, all of which relates to formal outcasting mechanisms, mostly from intergovernmental treaties.  The piece addresses how the ICC disciplines state parties — how does outcasting apply to the individuals who are prosecuted by it (and who end up in real prisons, a central feature of the Modern State Conception)?  And what would the theory do with state disaggregation and new channels of international standard-setting (IOSCO, codes of conduct, the UN Global Compact, etc), all of which move beyond the black box of sovereignty.

It’s possible the theory could extend to these other contexts, but it would lose its parsimony and the value added isn’t clear.  Almost all of these regimes will be permissive and nonadjudicated, and sanctions will almost always be informal (as they are in most treaty regimes, as a practical matter, to the extent that institutional expulsion is a rare event).  That may leave us back at the question of whether they qualify as law (I suspect that Scott and Oona would conclude that they are not).  Perhaps outcasting is a sustainable heuristic for exploring the still-important realm of treaty regimes.  Whether it supplies a universal theory of international law might be another question.