Comment on Oona Hathaway and Scott Shapiro Outcasting: They have some good news and some bad news

Being the only non-international lawyer I am the outlier (hopefully not to become the outcasted) among this group of commentators. I suspect I was asked because I am an EU law scholar
and, for some, that is international law. Having approached the subject with some skepticism I asked myself if that was not representative of the nature and importance of the question: maybe I want EU law to be different from international law because international law might not be law but why would that matter? I have, sometimes, wondered if the importance scholars give to these questions is not simple a function of our own disciplinary interests. International law or EU law status matter because it affects the status of our disciplines and, as a consequence, our own status. It was therefore with a good dose of cynicism that I approached the article.

I’m happy to say I am now a different man…Oona Hathaway and Scott Shapiro have written a path-breaking article. It is not simply an article on what is international law. It is an article on what is law. As mentioned, my initial reaction was cynical: ‘Is international law law? Who cares?’ It is what it is and let’s deal with it and discuss it as what it is’. But Hathaway and Shapiro persuaded me of why the question matters. The problem is that their answer to the question is, in fact, so persuasive that it also makes it clear that if international law is law is not really the important question. The important question is what type of law international law is.  I will address this by focusing in two key  conclusions resulting from the article (1) on the importance of enforcement for the legitimacy of international law and the type of questions international scholars need to answer; 2) on the relationship between international law and sovereignty) and one, in my view, new dimension of the enforcement of international law missing from the article.

1 – Even if I am mindful of the problems with thought experiments mentioned by Oona and Scott in their article, I would like to propose one. Let us assume that it would be possible for us to transform
legal enforcement at State level into a system of outcasting similar to that dominating international law.  I believe no one would dare to implement such experiment and we would all be very skeptical
of living in such a state. The reason, in my view, will not be the possible lack of effectiveness of outcasting. Oona’s and Scott arguments on its effectiveness are powerful and convincing. The reason for why we would all be very fearful of living in such a state is the asymmetric character of outcasting. Enforcement would not respect the logic of predictability and universality in the
application of the law that we expect from state legal orders. In my view, the real challenge to international law is not that of not being law. It is that of not being a legal order. When Oona and Scott make the argument that the enforceability of the law is what makes law under the Modern State Conception morally appealing, they seem to forget that it is not only enforcement that matters but how enforcement takes place. I am not extending this argument to the legitimacy of how law is produced. I am talking still at the level of enforcement itself. Even in certain totalitarian regimes where the rule of law is not respected, law must maintain a certain degree of predictability and universality in its application in order to constitute a legal order. What has traditionally provided this is both a claim of completeness and comprehensiveness on the part of a legal order and the existence of an ultimate source of legal authority (most commonly, today, expressed in a constitution representing the will of the people) to which all exercises of normative power (including enforcement) can be traced back. International law does not have this. It may seem strange for someone like me, a constitutional pluralist and EU law scholar, to make such a point. Arguably, EU law also lacks an ultimate source of legal authority. But, even if we accept that that would prevent the characterization of EU law as a legal order, it is a legal system. As I have argued elsewhere we could describe it as a system where law is practiced by actors of different legal orders under a commitment to  accommodate the claims of these different legal orders so as to provide a coherent and integrated construction of the law resulting from those competing claims. International law lacks that. As a consequence, it seems to me that Oona’s and Scott’s article renders clearer that it is now more
important to address the question of the legal order or the legal system (as Samantha also hints at). That is part of the enforcement question itself, particularly when the latter is conceived as legitimating international law. The new questions for international scholars that Oona and Scott identify, and that depart from the identification of outcasting as the natural instrument of
enforcement of international law, also depend on its characterization as a legal order or legal system. What forms of outcasting can be used and where depend on the normative link that is established between different sets of international rules and actors and this depends on the nature of international law as legal order or a legal system.

2 – Contrary to what Oona and Scott refer the enforcement power of outcasting does not really come from the exclusion of the benefits of cooperation generated by international law. It comes from the emerging interdependence between states that requires cooperation. It is mostly because of that interdependence that cooperation is so valuable (the case of cross-countermeasures render this particularly clear). In the absence of such cooperation states are subject to the externalities
generated by such interdependence without a voice in regulating them. As a consequence, I believe that Hathaway and Shapiro are wrong in how they attempt to reconcile international law and sovereignty. Outcasting does not allow a reconciliation of international law and sovereignty. It only renders more visible the limits on sovereignty as classically understood. In fact, outcasting is effective as an enforcement tool precisely because of the limits to sovereignty resulting from interdependence. Paradoxically, this actually reinforces part of Hathaway and Shapiro’s argument. Outcasting is bound to become a stronger mechanism of enforcement as interdependence increases and, therefore, the costs of non-cooperation become higher. In this light, the first limit to external outcasting highlighted by Hathaway and Shapiro will fade. But these may be bad news as well as good news.

3 – While being profoundly innovative in many ways the article seems to assume a traditional vision of state centered international law. The question of international law as law is focused on its enforceability with respect to states. But international law is increasingly directed at and enforced upon individuals. As outcasting will prove to be increasingly effective in securing compliance by states, the mediating role of the states will amount to a simple external enforcement of international law by the states upon individuals. If that is so, the attempt to legitimate such enforceability by reconciling sovereignty with international law via the voluntary character of outcasting by states will not be enough. This will be even more so, where international law may increasingly be perceived as an instrument by some actors within a state to shift the balance of power with respect to other actors (e.g., by empowering the executives). The consequences of this for the model and legitimacy of enforcement in international law are however not fully explored in the article.

To end with a provocation I will say that my doubt is whether the enforcement power of international law so successfully argued by Hathaway and Shapiro should be greeted as a welcomed discovery… For the reasons I mentioned, the convincing argument that outcasting will make international
law increasingly enforceable will also put its legitimacy increasingly under strain. There is a paradox in this story. As Hathaway and Shapiro rightly note the question, whether  international law is
law is relevant because it affects the legitimacy and, as a consequence, the claims to be made of international law. Enforcement through outcasting is therefore instrumental to the legitimacy of international law (its moral appeal in the words of Hathaway and Shapito). But, at the same time, as it stands, the asymmetric nature of outcasting also undermines the legitimacy of international law. It is only when international law will become an international legal order or, at least, an international legal system that we should welcome, without reservations, its enforceability.