Hathaway and Shapiro Closing Post

by Oona Hathaway and Scott Shapiro

We want to begin our closing post by thanking everyone who has participated in the symposium on our article this week. We also wish to thank our lead editor at the Yale Law Journal, Philip Levitz, who help arrange this symposium (as well as a forthcoming symposium at Yale Law Journal Online) and who has been truly outstanding in every respect.

It has been wonderful to see the different ways in which each of the participants in the symposium has approached our project. Samantha Besson, much of whose work focuses on the intersection of philosophy and international law, honed in on the jurisprudential issues, including the relationship between enforcement of international law and the juridical status of international law as law. Gary Bass, a leading political scientist, calls for process-tracing and empirical tests of our claims to inform longstanding debates in political science about state motives for compliance with international law. Michael Helfand, an expert on religious law, notes that our case study of the canon law is simply the tip of the iceberg—outcasting is used extensively, we are interested to learn, in religious legal systems. James Gathi, who has written extensively about law in the developing world, rightly points out that the theory of outcasting calls on us to identify the community that creates and withdraws benefits and the values that the community pursues in the process. Peter Spiro, a leading critic of sovereigntist legal scholarship, presses us to say more about the relationship between outcasting and state sovereignty. Each of these posts have helped us to think about outcasting from a different perspective. Together, they have begun precisely the conversation we hoped we might provoke with this article. We are grateful to Opinio Juris, and especially to Duncan Hollis, for creating the forum in which this could happen.

We cannot conclude, however, without discussing Miguel Maduro’s post—the last of the responses to our article. Miguel’s post is a wide-ranging and wonderfully thought-provoking reflection on two key themes: first, the importance of enforcement for the legitimacy of international law, and, second, the relationship between international law and sovereignty. As with all of the posts, we cannot begin to do his comments justice, but we will say a few brief words.

Miguel begins by asking whether we could imagine the use of outcasting by domestic authorities to enforce domestic law. He is skeptical that we would find this acceptable because of the asymmetric and unpredictable character of outcasting. In the domestic legal order, what gives law legitimacy, Miguel argues, is its claim of completeness and comprehensiveness. International law, he says, does not have this. We both agree and disagree. Yes, there are some instances in which outcasting is unpredictable—for example, the use of economic sanctions against states accused of human rights violations. But there are instances in which it is quite predictable—for example, the use of trade sanctions for violations of the GATT. It is not outcasting that makes the legal system unpredictable per se; it is the willingness or unwillingness of states to use the available sanctions to enforce the law. That, in turn, depends on a variety of factors—factors that can sometimes be at least partially addressed by better designed outcasting sanctions (in ways we begin to discuss in the article) and sometimes not. Miguel is right, however, that a legal order that relies on states to enforce is then effectively at the mercy of those states—the success or failure of the legal order depends on the willingness of the members to robustly participate in the outcasting regime. This is both a strength and a vulnerability.

Miguel is also absolutely right to point out that the power of outcasting comes from the emerging interdependence between states. We believe that this is precisely because the expansion of international law has generated benefits on which states increasingly rely. Outcasting threatens states with the loss of these benefits, a loss that is less bearable today than it would have been at a time when those benefits were smaller because the interdependence was weaker. We agree that as interdependence grows, outcasting as a tool will only become more powerful—precisely because the benefits states receive from the international legal system have grown and their vulnerability to having them withdrawn is commensurately increased. And Miguel is correct in his closing observation that if we are right that enforcement through outcasting strengthens the case that international law is law—by answering one common objection to its juridical status—then the legitimacy of international law naturally turns on when and how international law uses enforcement through outcasting. If that is correct—and we think it is—this lends greater urgency to the project in the second half of the article, in which we consider how outcasting sanctions may be used to most effectively enforce the international legal rules they are meant to police.

Hathaway and Shapiro Respond Part II

by Oona Hathaway and Scott Shapiro

We want to thank the participants in the symposium once again for their fantastic comments on our article. We have really enjoyed watching the discussion unfold. Here we offer a few words in response.

In his post, Peter Spiro suggests that we are operating from a “sovereigntist premise.” If what Peter means by this is that we accept that states are sovereign entities, then he’s clearly right. But we want to be clear that we do not accept the implications that are often taken to follow from that premise—particularly those described in Peter’s influential work on the “new sovereigntists.” Peter has written, “This group of academics . . . has developed a coherent blueprint for defending American institutions against the alleged encroachment of international ones. . . . At the center of their thinking stands the edifice of sovereignty. Sovereignty, in this conception, calls for America to resist the incorporation of international norms and drapes the power to do so in the mantle of constitutional legitimacy.”

We draw precisely the opposite conclusion of that which Peter ascribes to the “new sovereigntists.” The paragraph in our article that follows directly on the one quoted by Peter reads:

The recognition that international law most often relies on outcasting rather than physical force turns the sovereigntist critique on its head. If international legal regimes are best understood as arrangements that generate community benefits for member states and impose discipline through outcasting (excluding lawbreakers from the benefits of membership), then international law does not have the power to rob states of their sovereignty. Instead, it only has the power to take away the very benefits that it has itself generated. If that is true, then states that refuse to join international agreements out of a fear that doing so will undermine their sovereignty are simply voluntary outcasts.

In his post, James Gathi offers a thought-provoking set of observations on inclusion and exclusion. We find especially interesting and telling his points about the problematic aspects of outcasting, particularly with regard to treatment of non-western countries in the post-colonial era—and there is much food for thought in what he writes. To be clear, however, we do not mean to argue that all exclusion is outcasting. Outcasting as we use the term is something very specific: it is denying the disobedient the benefits of social cooperation and membership. To put it slightly differently, not all exclusion is outcasting, only exclusion of those who have violated the rules. Can states be excluded for other reasons, including reasons of prejudice, western-centrism, or parochialism? Certainly. But that’s not law enforcement through outcasting.

We also enjoyed Michael Helfand’s observations about the use of outcasting in religious law. We find this a nice exploration and extension of some of the points we made in the piece, particularly our discussion of canon law. We appreciate the effort to think about how outcasting can operate both at the international level and within states. As the title of our article suggests, outcasting can be used to enforce domestic as well as international law—law enforcement through outcasting is found wherever the legal regime generates benefits of social cooperation and membership which then may be withdrawn from those who disobey the rules of that regime.

The Sovereigntist Premise of Hathaway and Shapiro’s Outcasting

by Peter Spiro

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.

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.

Social Ostracism and Non-State Governance: A Comment on Hathaway & Shapiro

by Michael Helfand

I read Scott’s and Oona’s article Outcasting with great pleasure.  It is a wonderful contribution to the burgeoning literature on legal pluralism and non-state governance.  In particular, the article contests two propositions that have undermined recognition of various forms of non-state law: first, that law must be enforced by the legal regime itself; and second, that law must be enforced through the threat and exercise of physical force.  By contrast, the article contends that law can exist where members of a social group – legal subjects as opposed to legal authorities – can serve as the externalized enforcement arm of the law by withholding the benefits of social cooperation and membership from those failing to comply with the group’s rules and norms.

In tracing precedents of such forms of non-state governance, Outcasting points to Canon law, which highlights what I take to be an important area of intersection between international law and religious law.  Indeed, critics of non-state law have similarly linked international law and religious law; both have become targets of state legislatures in recent months, with a flurry of proposed bills aimed at prohibiting courts from considering or looking to either international or religious law (for recent updates, see here).

Much of this trend tracks a long-standing (and largely outdated) version of legal positivism – espoused by Thomas Hobbes and J.L. Austin – which refused to recognize to the possibility of law either “above the state” (e.g. international law) or “below the state” (e.g. religious or indigenous law).  Demonstrating that such legal theories fail to account for the wide range of social practices that create legal obligations was one of H.L.A. Hart’s primary objectives in his work The Concept of Law.  While not without ambiguity, Hart emphasized the role of social criticism and social sanction in the creation of legal obligation – experienced from the internal point of view.  (Hart’s role in this transformation was the topic of last week’s American Society of International Law symposium titled Hart’s Legacy on International Law.)

This intuition that social criticism and social sanction – even outside the confines of the nation-state – play prominent roles in the experience of legal obligation stands at the very center of Outcasting.  And while the piece does discuss Canon Law, it is worth noting that Canon law is really just the tip of the iceberg.  In fact, the use of social ostracism is alive and well within the United States among a wide range of religious communities.  Most notably, social ostracism is deployed as a method of enforcing appearance before and adherence to a growing network of religious arbitration courts functioning within the United States.  I’ve tried to explore this parallel form dispute resolution – and its central role in debates over the consequences of legal pluralism – in my recent article Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L. Rev. 1231 (2011).

As highlighted in the religious arbitration context, the use of social ostracism – or outcasting – is quite popular in legal systems below the state because it trades on the importance of membership in religious or indigenous groups to individual identity.  To be ostracized is, as frequently described in the multiculturalism literature, to lose a piece of yourself – to experience the anxiety and devastation associated with the deepest forms of misrecognition.  Accordingly, outcasting has proven a useful and powerful tool for religious arbitration courts, where failure to submit a claim for adjudication before a religious tribunal will sometimes result in devastating form of social ostracism and sanction.  And, in the context of religious arbitration, fear of social ostracism sometimes induces parties to sign binding arbitration agreements, thereby latching on to the enforcement arm of the nation-state.

In this context, the use of social ostracism and sanction “below the state” indicates that the success of outcasting in the international context is and will continue to largely be dependent on the existence of solidarity within the international community.  Social ostracism has been successful below the state because individuals care about membership in the group.  Accordingly, the experience of outcasting below the state reinforces the insight that the use of social pressure requires developing a sense of community and solidarity such that membership within the international remains an important and valuable good.  Of course, the value of such membership can be created through moral, ethical, social, economic and cultural mechanisms.  But in this way, the possibility of outcasting both above and below the state requires a re-evaluation of how we build solidarity within the relevant communities to ensure that membership still matters.

Hathaway and Shapiro Respond

by Oona Hathaway and Scott Shapiro

We want to thank Gary and Samantha for offering such interesting insights.  We will not be able to do them justice, but let us at least offer a few brief words in response.

In his latest post, Gary calls on us to say more about when outcasting will be effective at changing state behavior, calling for both process tracing and empirical analysis.  We take a first step in this direction in the article.  We argue that there are many forms of external outcasting and the differences between them are not random. They are instead quite systematic—differences in outcasting regimes can, we argue, be traced to differences in the legal rules to be enforced. We also aim to explain why the use of certain regimes in certain circumstances is to be expected.  From there we work through several challenges and how they are met in the real world—and we describe in some detail eight variations on outcasting and describe the specific international legal regimes that fit them.  Is there more that can be done? Certainly.  But we are not the only ones who could do this. Indeed, we very much hope that others will be inspired to put these ideas to the test in the ways Gary describes.

In his first post, Gary invited us to say a few words about, as he puts it, “the world’s most important rising power,” China. There are two aspects of outcasting that China illustrates well.  First, as we point out toward the end of the article, outcasting favors the powerful.  The more a state contributes to the collective benefits shared by all the members of a particular legal regime, the harder it is for the other member states to discipline that member through outcasting.  China is an excellent example.  It is difficult for any country to outcast China by, for example, putting in place trade sanctions.  China is now the world’s second largest economy.  No country—not even the United States—can close itself off from China without itself suffering severe consequences.  Second, outcasting often relies on cooperation among outcasting countries.  A decision by one country or even a group of countries to deny a law-breaking state the benefits of social cooperation and membership may not be as effective if another country is ready to replace the lost benefits.  As Gary showed in his recent and very powerful article, Human Rights Last, China is often happy to do business when no one else will.  As Gary shows, when the rest of the world sought to isolate and punish the regimes of North Korea, Myanmar/Burma, Sudan, and Zimbabwe, China showed up ready to do business.  This severely undermined the efforts of other countries to outcast the governments that had denied their citizens the most basic human rights.  All of this goes to illustrate a broader point: outcasting, for all its strengths, is not a panacea; like other law enforcement models, it has its limits. Those limits can be understood, explained, and, in some cases (but not all), addressed.

Turning to Samantha’s post, she begins by questioning our philosophical argument as to the relationship between legality and enforcement.  As she rightly notes, we say relatively little about this point.  We do so because engaging the argument of whether enforcement is necessary to law is a philosophical discussion of lengthy pedigree on which we do not wish to focus.  Our view is that it is enough that many do believe that enforcement is necessary to law.  We thus assume arguendo that enforcement is necessary to law.  We then proceed to show that international law is enforced—often through outcasting—and therefore absence of enforcement should not be a reason for concluding that international law is not law.

The second half of Samantha’s response focus on our argument about the enforcement of international law.  In her first objection, she notes that it is difficult to argue that that a single account fits all of international law “in view of the extreme diversity of international legal norms in terms of sources, degree of normativity and scope.”  She is right that we are making the arguably audacious claim that outcasting applies across diverse international legal regimes.  Indeed, we think that claim is important to the success of the article.  That said, we do not mean to claim that every international legal regime is always enforced or that enforcement always takes the form of outcasting.  Indeed, we show that a few international legal regimes are enforced through internal physical force, some though external physical force, and many (indeed, a diverse array of regimes) through outcasting.  Samantha’s second objection focuses on the distinction between external and internal.  By internal enforcement we mean enforcement by the regime itself—that is, through designated international bureaucracies.  To determine what is internal and external, therefore, one must reference the particular regime.  Enforcement of the GATT, therefore, is external—the governments of the states that do the outcasting sit outside the bureaucracy of the WTO.  Third, Samantha points out that more could be said about states and state sovereignty.  We agree and our next project aims to make further progress on this point.  Fourth and finally, Samantha argues that  “the complex nature of states and their relationship to their individual constituents should prevent us from developing explanations of the enforcement of international law by analogy to the way one explains the enforcement of domestic law by individuals.”  Here we have to disagree.  A key aim of this project is to suggest that there is a great deal to learn by thinking about domestic and international law not as entirely different but as sharing important properties.  This is not to suggest there are no differences—there are many.  But the field has for too long focused on these differences.  There is room, we think, for a different approach.

More Gary Bass on Hathaway and Shapiro

by Gary Bass

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.

Gary Bass Responds to Hathaway and Shapiro on Outcasting

by Gary Bass

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.

International Legality – A Response to Hathaway & Shapiro

by Samantha Besson

In their article Outcasting: Enforcement in Domestic and International Law, Oona Hathaway and Scott Shapiro make a seminal contribution to the study of the legality of international law.
Their piece is not only a direct contribution to the burgeoning field of philosophy of international law, but it also participates in and deepens an important conversation within the field of general jurisprudence and the philosophy of law tout court. The authors succeed, on the one hand, in shedding new light on the relationship between legality and legal enforcement that is an old chestnut in legal theory, and in making some interesting methodological claims about the best way to conduct a jurisprudential argument about the concept of law. With respect to the philosophy of international law, on the other, the authors broach the neglected question of the legality of international law, and rightly deem it an important issue and not one that is trumped by others such as the legitimacy of international law in particular.

In this response, I question the authors’ argument with respect, first of all, to their underlying reasoning in general jurisprudence, and more specifically the way they link legality to enforcement (that argument, if defeated, no longer conditions the second part of their argument pertaining to the legality of international law), and, secondly, to their take on the philosophy of international law and in particular their argument regarding external outcasting as a form of enforcement inherent to international legality.

Outcasting: Enforcement in Domestic and International Law

by Oona Hathaway and Scott Shapiro

We are grateful to Duncan and Opinio Juris for the opportunity to discuss our article.  Here we attempt to lay out our central claim and the key implications we believe it has for the organizing questions in the field of international law.

Our article proposes a new way to think about law enforcement.  We argue that law enforcement need not involve the use or threat of physical force wielded by actors internal to the regime (such as police).  Law can instead be enforced through what we call outcasting—denying the disobedient the benefits of social cooperation and membership.

Outcasting is much more than simple shaming or shunning. Consider the World Trade Organization.  The WTO uses external outcasting to enforce its rules. The enforcement regime of the WTO is devoid of any threat or use of physical force. As one commentator aptly put it, “The WTO has no jailhouse, no bail bondsmen, no blue helmets, no truncheons or tear gas.” Instead, enforcement entails denying the violating state the benefits of cooperation (access to the full benefits of the trade-promoting rules of the GATT), in proportion with the harm it has itself done.  Moreover, the rules are not enforced internally—that is, by the officials of the WTO itself.  Yes, the WTO has a compulsory dispute resolution system. But the decisions rendered by that system are enforced through authorized retaliation by the aggrieved state party. It is the states, not the WTO itself, that impose the sanction. Enforcement is thus external to the legal regime. Enforcement is limited to specific, WTO-approved, retaliatory trade measures taken by the aggrieved parties after a process of adjudication. Moreover, the WTO is far from alone—enforcement through outcasting is used by regimes as diverse as the Montreal Protocol, Chapter VII of the U.N. Charter, the Universal Postal Union, customary countermeasures, and the European Convention on Human Rights.

What are the stakes of the claim that outcasting is properly understood as a form of law enforcement?  We believe that it opens up a new way of seeing international law and casts the central organizing questions of the field in a new light.

A central focus of the field of international law today is whether international law is effective. Whether the law is effective is thought to depend in significant part on whether it is enforced.  But if outcasting is enforcement, then international agreements that lack enforcement through physical force do not necessarily lack enforcement.  Enforcement through exclusion from the benefits of social cooperation can be as powerful at motivating states to comply with the law as any physical force—and sometimes even more powerful. Moreover, as we aim to show through developing many different variations on the outcasting model, outcasting is multifaceted. Different forms of outcasting are better suited to addressing different sets of challenges. This opens up a new world of possibilities for international law—and a host of new questions for scholars to answer. Why do some variations exist in some contexts and not in others? Which variations are most effective in which circumstances?  Are there further variations that could be used to respond to challenges not already met by existing forms of outcasting? Are there areas of international law where outcasting could be better tailored to effectively enforce the law? What barriers exist to making those changes and how might they be overcome?

Outcasting also places the longstanding debate over sovereignty in a new light. The recognition that international law often relies on outcasting rather than physical force turns the sovereigntist critique on its head. If international legal regimes are best understood as arrangements that generate community benefits for member states and impose discipline through outcasting (excluding lawbreakers from the benefits of membership), then international law does not have the power to rob states of their sovereignty. Instead, international law only has the power to take away the very benefits that it has itself generated. If that is true, then states that refuse to join international agreements out of a fear that doing so will undermine their sovereignty are simply voluntary outcasts.

Opinio Juris/Yale Law Journal Symposium: Hathaway and Shapiro on Outcasting

by Duncan Hollis

Starting this coming Tuesday, Opinio Juris is pleased to host a joint symposium with the Yale Law Journal on a new article by Oona Hathaway and Scott Shapiro, Outcasting: Enforcement in Domestic and International Law. Here’s the abstract:

This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such as police or militia, that employ physical force to maintain order. Instead, outcasting involves denying the disobedient the benefits of social cooperation and membership. Law enforcement through outcasting in domestic law can be found throughout history – from medieval Iceland and classic canon law to modern-day public law. And it is ubiquitous in modern international law, from the World Trade Organization to the Universal Postal Union to the Montreal Protocol. Across radically different subject areas, international legal institutions use others (usually states) to enforce their rules and typically deploy outcasting rather than physical force. Seeing outcasting as a form of law enforcement not only helps us recognize that the traditional critique of international law – that it is not enforced and is therefore both ineffective and not real law – is based on a limited and inaccurate understanding of law enforcement. It also allows us to understand more fully when and how international law matters.

You can download a copy of the article over at SSRN (or check it out at the YLJ site).  We’re also pleased to welcome a group of distinguished commentators for the discussion: Samantha Besson from the University of Fribourg, Gary Bass from the Woodrow Wilson School at Princeton, and Miguel Maduro of EUI (and previously Advocate General for the European Court of Justice). It’s a great line-up and we’re very much looking forward to the conversation beginning on November 15.