Outcasting: enforcement in domestic and international law.

• Author: Hathaway, Oona A.

ARTICLE CONTENTS I. SKEPTICISM ABOUT INTERNATIONAL LAW A. Austin's Objection B. The Internality Objection C. The Brute Force Objection D. The Modern State Conception II. LAW ENFORCEMENT IN THE MODERN STATE CONCEPTION A. Primary and Secondary Enforcement B. Does International Law Satisfy the Modern State Conception? C. Is the Modern State Conception Valid? III. LAW WITHOUT POLICE A. Medieval Iceland B. Classical Canon Law C. Feature or Bug? IV. OUTCASTING AND EXTERNAL ENFORCEMENT IN INTERNATIONAL LAW A. External Physical Enforcement B. Internal Outcasting C. External Outcasting V. EXTERNAL OUTCASTING IN INTERNATIONAL LAW A. Describing Variation in External Outcasting 1. Permissive or Mandatory? 2. Adjudicated or Nonadjudicated? 3. In-Kind or Non-in-Kind? 4. Proportional or Nonproportional? 5. First Parties Only or Third Parties Included? B. Explaining Variation in External Outcasting 1. Outcasting Is Costly? Make It Mandatory 2. The Regime Creates Public, Not Private, Benefits? Use Cross-Countermeasures 3. Outcasting Is Too Attractive ? Require Adjudication or Proportional Sanctions 4. First-Party Outcasting Is Ineffective ? Bring in Third Parties C. Eight Externalized Outcasting Regimes 1. Simple Outcasting 2. One Step Removed: Adjudicated 3. Two Steps Removed: Adjudicated and Non-in-Kind 4. Three Steps Removed: Adjudicated, Nonproportional, and Third Parties Included 5. Three Steps Removed: Mandatory, Non-in-Kind, and Third Parties Included 6. Four Steps Removed: Mandatory, Adjudicated, Non-in-Kind, and Third Parties Included 7. Four Steps Removed: Adjudicated, Non-in-Kind, Nonproportional, and Third Parties Included 8. Five Steps Removed: Mandatory, Adjudicated, Non-in-Kind, Nonproportional, and Third Parties Included D. The Limits of Externalized Outcasting 1. External Outcasting Relies on Cooperative Benefits 2. Outcasting Favors the Powerful over the Weak 3. Outcasting Is Nonviolent VI. INTERNATIONAL LAW ENFORCEMENT REIMAGINED A. Examining International Law as Law B. Reimagining Possibilities in International Law C. The Sovereigntist Fallacy Is international law law? In 2009, the American Society of International Law organized a panel at its annual meeting to discuss the question. Most of the panelists, however, began by expressing indignation that such a panel had even been convened. Andrew Guzman thought the question was a "futile" one; (1) Thomas Franck was "surprised that we have gathered here again at the beginning of a new political era to ask this tired old question"; (2) and Jose Alvarez was "appalled that we are still discussing this 1960's chestnut of a question." (3) Instead, they agreed, the more interesting question--indeed, the proper organizing question of the field--is, "how well does international law do in its effort to influence state behavior." (4)

We understand this reaction, but we do not share it. The question of whether international law is law matters a great deal. Most fundamentally, it matters from the moral point of view. Law's moral import follows from a basic truth accepted by all but hardcore anarchists: namely, that legal systems are morally valuable institutions. (5) Thus, whether we ought to respect, support, or obey international law depends in part on whether it possesses those properties that make legal regimes worthy of our esteem and allegiance--that is, on whether it is "really" law (an implication, by the way, not lost on critics who deny its legality). But there is an additional--and, we shall see, deeply illuminating--reason why this jurisprudential question ought to be engaged. As we will show in this Article, responding to the critics who argue that international law is not law allows us to make substantial new progress in answering the very question international law scholars do care about: whether and how international law affects state behavior.

The reason is simple. The principal objection made by critics of international law is that international law cannot be real law because it cannot matter in the way that real law must matter. In particular, they argue that international law cannot matter in the way it must to be law because it lacks mechanisms of coercive enforcement. Anthony D'Amato describes this objection as follows:

Many serious students of the law react with a sort of indulgence when they encounter the term "international law," as if to say, "well, we know it isn't really law, but we know that international lawyers and scholars have a vested professional interest in calling it 'law.'" Or they may agree to talk about international law as if it were law, a sort of quasi-law or near-law. But it cannot be true law, they maintain, because it cannot be enforced: how do you enforce a rule of law against an entire nation, especially a superpower such as the United States or the Soviet Union? (6) On this objection, international law cannot be real law because real law must be capable of affecting behavior through the threat and exercise of physical coercion. Since international law lacks mechanisms of physically coercive enforcement, it cannot affect behavior in the right way and hence cannot be a real legal system. It follows that answering the skeptic who doubts that international law is law also answers the skeptic who doubts that international law matters. For in order to respond to the first skeptic, one must show that international law is capable of affecting behavior in the right way to be law. But once one shows that international law matters in the right way, one ipso facto shows that it matters!

No doubt, one could try to answer the question of whether international law matters directly without engaging the central objection to international law as law. But there is a crucial advantage to addressing the former question via the latter. For examining whether international law is law first requires one to figure out all the ways in which legal systems must be capable of affecting behavior to be law. This inquiry opens up a fascinating range of new possibilities about how law might matter to its subjects. With the help of the fuller account that results, we will not only see that international law is capable of affecting state behavior in the right way to be law; more significantly, it is capable of affecting state behavior in ways that have previously eluded international law scholars. Though international law does not matter to states in the same way that much modern domestic law does, we will show that it matters to them nonetheless. International law has mechanisms of law enforcement and these mechanisms give states reason not to violate the law.

Jurisprudence, then, can be an invaluable tool for empirical investigations of legal phenomena, for the former aims to uncover logical space often neglected by the latter. Indeed, the temptation to overlook important areas of jurisprudential space when analyzing international law is especially strong. After all, the legal systems with which we are most familiar are domestic. In our culture, modern state regimes are the paradigm instances of law. The inclination to focus exclusively on the state and to understand all legal phenomena through this lens is thus completely understandable. But it is also, we argue, a grave mistake.

In this Article, we show that critics of international law have succumbed to this temptation and have taken modern legal systems as their exclusive model for law. They have adopted what we call the "Modern State Conception" of law. The Modern State Conception maintains that regimes are legal systems only when they possess the distinctive capacities of the modern state; namely, they possess a monopoly over the use of force within a territory and use this monopoly to enforce their rules. In the domestic context, the monopoly is shared by a host of interlocking bureaucratic organizations that employ intimidation and violence as a method of enforcement, such as police, militia, prosecutorial agencies, and correctional institutions. In the Modern State Conception, then, law matters through the threat and exercise of violence by such organizations. Skepticism about international law naturally follows from this conception given that international law does not possess these bureaucratic institutions. Famously, it does not have its own army or police force. While international prosecutorial agencies and prisons have sprung up in recent years, nothing resembling the modern state's enforcement apparatus exists or is likely to exist for the foreseeable future. If law must matter through the threat and exercise of physical coercion by an interlocking system of bureaucratic institutions, then international law cannot matter in the right way to be law.

We argue that the concept of law that lies behind this critique of international law is seriously flawed because of its limited understanding of how rules must be capable of affecting behavior in order to count as law. Its failure stems not simply from the fact that the Modern State Conception insists that legal rules only affect behavior when they are enforced; more importantly, it falters by adopting an excessively narrow conception of law enforcement itself. The Modern State Conception errs by insisting that law may only be enforced in the same way that it is enforced in modern states. First, it demands that the law can matter only if it is enforced internally, i.e., by the regime itself. Second, it requires that law matter only if it is enforced violently, i.e., through the threat and exercise of physical force.

This narrow understanding of law enforcement ignores regimes that outsource enforcement to external parties. We argue that, contrary to the Modern State Conception, as long as some party is tasked with using coercion in order to ensure compliance with the rules, the regime itself need not perform the role. We call this externalized enforcement. Moreover, we argue that the coercion used to enforce the law need not...