Outcasting: Enforcement in domestic and international law

Yale Law Journal

Volumn 121, Issue 2, 2011, Pages 252-349

  Hathaway, Oona ^a   Shapiro, Scott J ^a  

^a NONE

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EID: 80155132514     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (387)

1. Andrew T. Guzman, Rethinking International Law as Law, 103 AM. SOC'Y INT'L L. PROC. 155, 155 (2009).
2. Thomas Franck, Remarks, 103 AM. SOC'Y INT'L L. PROC. 161, 161 (2009).
3. José E. Alvarez, But Is It Law?, 103 AM. SOC'Y INT'L L. PROC. 163, 163 (2009).
4. Guzman, supra note 1, at 156.
5. To say that the law is a morally valuable institution is to make a claim about its potential. The moral value of the law stems from its distinctive ability to solve problems that no other comparable social institutions are capable of solving.
6. SCOTT J. SHAPIRO, LEGALITY chs. 6, 14 (2011). When a particular system does not solve these problems, exacerbates them, or creates new problems, it fails to realize its potential and correspondingly lacks moral value. In this respect, law is like marriage and education. While these social institutions are capable of realizing important moral goods, their failure to do so deprives their instantiations of value and may render them morally pernicious.
7. Anthony D'Amato, Is International Law Really 'Law'?, 79 NW. U. L. REV 1293, 1293 (1985).
8. Ruth Okediji, Public Welfare and the Role of the WTO: Reconsidering the TRIPS Agreement, 17 EMORY INT'L L. REV. 819-837 n.43 (2003) ('The organizing inquiry of international law is 'is international law law?'').
9. John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED 5-6 (Univ. of London 1832).
10. Id. at 6-8.
11. Id. at 8.
12. Id. at 378.
13. Id. at 210.
14. Technically, Austin regarded the corporate body of the King, the peers, and the electors of the House of Commons as the sovereign.
15. id. at 235-41.
16. Id. at 208.
17. Id. at 147.
18. Not everyone accepted Austin's skeptical view; indeed, many Austinian sympathizers accepted the legal status of international law. Though E.C. Clark regarded law as 'a rule of human conduct sanctioned by human displeasure,'E.C. CLARK, PRACTICAL JURISPRUDENCE: A COMMENT ON AUSTIN 188 (Cambridge Univ. Press 1883) (emphasis omitted), he was nevertheless adamant that international law fit such a definition. According to Clark, international law is law because it is backed by the general hostility engendered by the violation of its rules. Id. at 186 ('I maintain that the rules of International Conduct, as now actually administered by the general consent and action of civilised nations, constitute a practical law, to which it is absurd to deny the name...'). J.L. Brierly not only denied that legal systems must make provisions for sanctions, but regarded self-help in international law as a form of sanctioning.
19. J.L. BRIERLY, THE LAW OF NATIONS 101 (1963) ('This absence of an executive power means that each state remains free. to take such action as it thinks fit to enforce its own rights. This does not mean that international law has no sanctions, if that word is used in its proper sense of means for securing the observance of the law...').
20. THOMAS ERSKINE HOLLAND, THE ELEMENTS OF JURISPRUDENCE 133 (13th ed. 1924).
21. Id. at 134 ('[L]aw without an arbiter is a contradiction in terms.').
22. Id. at 135.
23. WILLIAM EDWARD HEARN, THE THEORY OF LEGAL DUTIES AND RIGHTS 40 (London, Trübner & Co. 1883)
24. JAMES PATERSON, COMMENTARIES ON THE LIBERTY OF THE SUBJECT AND THE LAWS OF ENGLAND RELATING TO THE SECURITY OF THE PERSON 97 (London, Macmillan & Co. 1877) ('[T]o call [public international law] a law at all is rather a figure of speech than a correct use of technical language. It is a law only in the sense in which the code of honour or the code of morals, or religion, or any other rule of conduct is a law, being a collection of self-imposed rules and maxims drawn up in imitation of municipal laws.').
25. EDWARD JENKS, THE NEW JURISPRUDENCE 11 (1933)
26. GEORGE W. KEETON, THE ELEMENTARY PRINCIPLES OF JURISPRUDENCE (1930)
27. FREDERICK POLLOCK, A FIRST BOOK OF JURISPRUDENCE FOR STUDENTS OF THE COMMON LAW 14 (5th ed. 1923) (suggesting international law is analogous to 'those customs and observances in an imperfectly organised society which have not fully acquired the character of law, but are on the way to become law').
28. GEORGE WHITECROSS PATON, A TEXT-BOOK OF JURISPRUDENCE 71 n.1 (1st ed. 1946).
29. Id. at 71.
30. H.L.A. HART, THE CONCEPT OF LAW, 44-49 2d ed. 1994).
31. id. at 42-44.
32. id. at 66-78, 221.
33. U.S. CONST. art. I, § 9, cl. 1 (prohibiting abolition of the slave trade before 1808)
34. U.S. CONST. art. V (providing that 'no State, without its Consent, shall be deprived of its equal Suffrage in the Senate').
35. U.S. CONST. art. V. Members and Observers, WORLD TRADE ORG., http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Oct. 1, 2011).
36. The World Trade Organization, WORLD TRADE ORG., 7 (2009), http://www.wto.org/english/res_e/doload_e/inbr_e.pdf.
37. Petros C. Mavroidis, Licence To Adjudicate: A Critical Evaluation of the Work of the WTO Appellate Body So Far, in TRADE DISPUTES AND THE DISPUTE SETTLEMENT UNDERSTANDING OF THE WTO: AN INTERDISCIPLINARY ASSESSMENT 73, 73 (James C. Hartigan ed., 2009)
38. BERNARD M. HOEKMAN & PETROS C. MAVROIDIS, THE WORLD TRADE ORGANIZATION: LAW, ECONOMICS, AND POLITICS 77 (2007) (noting that trade law and the law of the sea provide 'the only two operational examples in international relations of compulsory third party adjudication').
39. The dispute resolution process is governed, in particular, by Annex 2 of the WTO Agreement.
40. Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 33 I.L.M. 1226 (1994) [hereinafter DSU].
41. HOEKMAN & MAVROIDIS, supra note 32, at 78.
42. Pao-Li Chang, The Evolution and Utilization of the GATT/WTO Dispute Settlement Mechanism, in TRADE DISPUTES AND THE DISPUTE SETTLEMENT UNDERSTANDING OF THE WTO, supra note 32, at 91, 92.
43. supra note 14 and accompanying text.
44. We do not mean to suggest that Austin himself accepted the Brute Force Objection. Though Austin claims that international law was deficient for only imposing moral sanctions, he does not explicitly require that sanctions be physical in nature and, in certain places, implies that they are not.
45. AUSTIN, supra note 8, at 8-9 (rejecting Paley's view that sanctions must be 'violent'). It is plausible to suppose, however, that Austin's critique of international law was influential in getting others to accept the Brute Force Objection, even if he did not accept it himself.
46. Judith Hippler Bello, Editorial Comment, The WTO Dispute Settlement Understanding: Less Is More, 90 AM. J. INT'L L. 416-417 (1996).
47. Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601-1609 (1986) (footnote omitted).
48. Id. at 1607.
49. HANS KELSEN, GENERAL THEORY OF LAW AND STATE 21 (Anders Wedberg trans., 1945).
50. In a recent article, Gillian Hadfield and Barry Weingast have independently identified (what we call) the 'Modern State Conception' as an assumption shared by many theorists of law and have developed an alternative model in which nonofficials collectively enforce the rules of the group through boycotting.
51. Gillian K. Hadfield & Barry R. Weingast, What Is Law? A Coordination Account of the Characteristics of Legal Order, J. LEGAL ANALYSIS (forthcoming), available at http://ssrn.com/abstract=1707083.
52. John R. Bolton, Is There Really 'Law' in International Affairs?, 10 TRANSNAT'L L. & CONTEMP. PROBS. 1, 4 (2000).
53. For a popular expression of the Modern State Conception as applied to international law, see Editorial, Scorning the World Court, N.Y. TIMES, Jan. 20, 1985, http://www.nytimes.com/1985/01/20/opinion/scorning-the-world-court.html, which states that ''[s]trictly speaking, there being no world government, there's no such thing as world law.''
54. Secondary enforcement rules can exist even when there are no primary enforcement rules. They are 'secondary' rules because they are directed at individuals other than the conduct rule violators.
55. PAUL E. GALLIS, CONG. RESEARCH SERV., 97-717 F, NATO: ARTICLE V AND COLLECTIVE DEFENSE (1997).
56. FUTURE NATO SECURITY: ADDRESSING THE CHALLENGES OF EVOLVING SECURITY AND INFORMATION SHARING SYSTEMS AND ARCHITECTURES, at vii (Martin Edmonds & Oldrich Cerny eds., 2004).
57. North Atlantic Treaty art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243, 246.
58. NORTH ATLANTIC TREATY ORGANISATION: 60TH ANNIVERSARY 2 (Hanna Weijers ed., 2009).
59. JEFFREY P. BIALOS & STUART L. KOEHL, THE NATO RESPONSE FORCE: FACILITATING COALITION WARFARE THROUGH TECHNOLOGY TRANSFER AND INFORMATION SHARING 1 (Sept. 2005), available at http://www.ndu.edu/CTNSP/docUploaded/DTP%2018%20NATO %20Response%20Force.pdf.
60. U.N. Charter art. 2, para. 4 ('All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.').
61. Id. art. 39. Chapter VII, by its very title, outlines the United Nations' response to 'Threats to the Peace, Breaches of the Peace, and Acts of Aggression.'
62. Id. ch. 7.
63. Id. art. 43, paras. 1-3.
64. Id. art. 47, para. 3. The Military Staff Committee is established by Article 47(1). The responsibility of the Military Staff Committee for the 'strategic direction of any armed forces' is set forth in Article 47(3). For more on the procedures set forth in Articles 42, 43, and 47.
65. Eugene V. Rostow, Agora: The Gulf Crisis in International and Foreign Relations Law, Continued, 85 AM. J. INT'L L. 506, 507-508 (1991), which argues that the enforcement provisions in the U.N. Charter have not yet been fully realized.
66. It was described by one historian as 'a sterile monument to the faded hopes of the founders of the UN.' Eric Grove, U.N. Armed Forces and the Military Staff Committee: A Look Back, INT'L SECURITY, Spring 1993, at 172, 172
67. External physical enforcement under Chapter VII of the U.N. Charter is discussed in more depth in Section IV.A.
68. Consider, for example, the following critiques of international law, drawn from public debates. On the floor of the U.S. House of Representatives, Congressman Ron Paul argued: '[I]t is time to stop trying to manipulate the United Nations and start asserting our national sovereignty. If we do not, rest assured that the United Nations will continue to interfere, not only in our foreign policy, but in our domestic policies, as well.' 149 CONG. REC. 9949 (2003) (statement of Rep. Ron Paul). Pat Buchanan similarly argued that the Law of the Sea Treaty 'represents a permanent loss of national sovereignty. Hence it is inherently un- American.'
69. Patrick J. Buchanan, Should the U.N. Be Lord of the Oceans?, AM. CAUSE (Feb. 28, 2005), http://www.theamericancause.org/a-pjb-050228-lordoftheoceans.htm. Conservative commentator Frank Gaffney wrote: 'Just as Hurricane Katrina ruptured the levees protecting New Orleans, the concerted U.N. assault on the barriers to further erosion of American sovereignty threatens to swamp our freedom of action and our Founding principle of 'no taxation without representation.''
70. Frank Gaffney, Sovereignty Levees Breached?, WASH. TIMES, Sept. 12, 2005, http://www.washingtontimes.com/news/2005/sep/12/20050912-090351-9594r.
71. Representative Christopher Smith, speaking about the Convention To Eliminate All Forms of Discrimination Against Women, asked: 'Do our constituents. really want a group of international bureaucrats telling them that the day set aside to honor our mothers must be abolished?' Women's Rights Treaty a Threat to Mother's Day, Lawmaker Says, CHI. TRIB., May 4, 2000, http://articles.chicagotribune.com/2000-05-04/news/0005040213_1_treaty-women-have-equal-rights-mother-s-day (quoting Rep. Christopher Smith).
72. JOSEPH RAZ, PRACTICAL REASON AND NORMS 159-160 (1975)
73. Scott J. Shapiro, LEGALITY 169-175 (2011).
74. Ekow N. Yankah, The Force of Law: The Role of Coercion in Legal Norms, 42 U. RICH. L. REV. 1195, 1235-38 (2008).
75. D'Amato, supra note 6, at 1295.
76. Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 HARV. L. REV. 1791,1831 (2009) (paragraph break omitted). It should be made clear that Goldsmith and Levinson do not themselves argue that international law is law or that the Enforcement Thesis is false. They simply argue that international law shares with constitutional law 'the absence of an enforcement authority capable of coercing powerful political actors to comply with unpopular decisions.'
77. Id. at 1794. We are using their argument about the unenforceability of public law to construct a possible argument against the Enforcement Thesis.
78. Alexander M. Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962).
79. Goldsmith & Levinson, supra note 65, at 1840.
80. 418 U.S. 683 (1974).
81. supra text accompanying note 67.
82. The similarity between international law and medieval Icelandic law has been noted by Stanley Anderson, Human Rights and the Structure of International Law, 12 N.Y.L. SCH. J. INT'L & COMP. L. 1, 3-5 (1991).
83. Gillian K. Hadfield & Barry R. Weingast, Collective Punishment: A Coordination Account of Legal Order (Univ. of S. Cal., USC Law Legal Studies Paper No. 11-9, 2001), available at http://ssrn.com/abstract=1786918 (exploring the similarity between a number of normative orders including medieval Icelandic law and the World Trade Organization).
84. For the Icelandic terms in this Section, we follow the anglicizations adopted in William Ian Miller, BLOODTAKING AND PEACEMAKING: FEUD, LAW, AND SOCIETY IN SAGA ICELAND (1990). For Miller's explanation of his spellings
85. id. at xi.
86. Richard F. Tomasson, ICELAND: THE FIRST NEW SOCIETY (1980).
87. GUNNAR KARLSSON, THE HISTORY OF ICELAND 12-15 (2000). Karlsson's chronology comes from The Book of Settlements, authored in the twelfth century by the priest Ari Porgilsson, which is considered one of the principal sources for the settlement.
88. Id. at 11.
89. MILLER, supra note 71, at 16-17.
90. Id. at 14.
91. Id. at 13-14.
92. KARLSSON, supra note 73, at 15 ('In the Book of Settlements the most common cause of the emigration of individual settlers is the aggression of the king of Norway, Haraldr Fairhair.').
93. JESSE L. BYOCK, MEDIEVAL ICELAND: SOCIETY, SAGAS, AND POWER 53-54 (1988).
94. Chieftains were local leaders who likely had both religious and secular tasks. KARLSSON, supra note 73, at 24-26. Chieftains also constituted an important part of local organization. Every household had to declare itself to be 'in Thing' with-which essentially meant in alliance with-a chieftain, and once so allied, members of the household were known as that chieftain's 'thingmen.' The head of the household chose the allegiance for all of his household members.
95. MILLER, supra note 71, at 17. Thingmen were required to attend the Things presided over by their chieftains.
96. Jesse Byock, VIKING AGE ICELAND 171 (2001).
97. BYOCK, supra note 77, at 120.
98. Id. at 59.
99. Id. at 60.
100. BYOCK, supra note 78, at 171.
101. According to the traditional account, Ulfljotur was sent back to Eastern Norway around 927 to study the law of the gulathing. On the basis of this study, he compiled and brought back a new law code. This code was adopted in 930 as the law of the land by the community of settlers.
102. Tomasson, supra note 72, at 15.
103. Byock, supra note 77, at 61.
104. Karlsson, supra note 73, at 22. The Quarter system was instituted in the 960s.
105. id. at 24. The Quarters were comprised of three local Things, except for the North, which encompassed four Things.
106. Miller, supra note 71, at 18.
107. Byock, supra note 77, at 65.
108. Other more serious forms of punishment will be discussed at length in this Section.
109. Miller, supra note 71, at 17.
110. Id. at 18.
111. Byock, supra note 78, at 174-75.
112. Byock, supra note 77, at 61.
113. Byock, supra note 78, at 175.
114. On this point, Byock elaborates, '[a]lthough the position of the law-speaker was prestigious, it brought little or no official power to its holder, who was allowed to take sides and to participate in litigation and in feuds as a private citizen.'
115. Miller, supra note 71, at 227. It is not clear to what extent the Lawspeaker decided which laws to recite, nor is it clear whether there was any special significance to the selection.
116. Byock, supra note 78, at 175-76.
117. Byock, supra note 78, at 175.
118. Byock, supra note 78, at 181
119. MILLER, supra note 71, at 21 ('Political and jural unity was achieved by the symbolic load borne by the Allthing and the law that was recited there.').
120. Karlsson, supra note 73, at 21, 24.
121. Miller, supra note 71, at 227-28.
122. Id. at 223. In addition to prosecution, victims could either engage in self-help by initiating/continuing feuds or seek settlements via private arbitration.
123. Id. at 7-8. We assume in our discussion that neither feuding nor settling is a form of law enforcement. While the law's permitting feuds and settlements might indicate that the law used these private actions as means to enforce its rules, this inference should be resisted. As we will discuss later on, successful prosecutors were accorded greater rights than feuders.
124. See infra text accompanying note 110. This strongly suggests that the law preferred the former to the latter and privileged prosecution as a method for imposing penalties on wrongdoers. In the case of settlement, the formal law actually forbade arbitration in cases of killing or serious injury absent permission by the Logretta. Though the sagas suggest that these limitations were not heeded, 'legal experts[] were willing to claim a priority for formal legal resolution over purely private settlement.'
125. Id. at 262.
126. Miller, supra note 71, at 224.
127. LAWS OF EARLY ICELAND (Gragas I) 7-8 (Andrew Dennis, Peter Foote & Richard Perkins trans., 1980).
128. Byock, supra note 77, at 231.
129. Miller, supra note 71, at 235. Property was confiscated from an outlaw in a ceremony held at the defendant's home known as a féránsdómr.
130. First, the outlaw's wife's property was set aside, and then all creditors' claims were paid. One half of the remaining assets was awarded to the defendant, and the other half to the men of either the Quarter or the district for the maintenance of the outlaw's dependent or, if the outlaw had no dependents, then to needy members of the community.
131. Byock, supra note 77, at 231-232.
132. On the legitimacy of the law in Iceland, see Miller, supra note 71, at 229 ('[I]t seems that people felt that law promoted order, not just the systemic order derived from the assignment of things to a place in a legal and social structure, but actual peace. The sentiment is captured in the Norse proverb invoked by Njal: 'With laws shall our land be built, but with disorder laid waste.'' (quoting NJÁLA 70:172 (William Ian Miller trans.) (c. 13th century))).
133. Byock, supra note 77, at 231
134. LAWS OF EARLY ICELAND, supra note 103 at 38, 92 (noting that lesser outlaws would become full outlaws if they did not pay the prescribed penalty to the confiscation court)
135. LAWS OF EARLY ICELAND (Gragas II) 107-08, 383 (Andrew Dennis, Peter Foote & Richard Perkins trans., 2000) (describing increasing penalties for judgment breaking).
136. Miller articulates externalized law enforcement in Iceland in terms of the lack of state monopoly on violence: In Iceland, the violence of the law was not something removed from the general populace. There were no state apparatus to pretend to monopolize the legitimate use of force. Violence did not take place behind prison walls, there was no sheriff to issue a summons to a hostile party, to keep the peace in the court, or to execute judgment. It was up to free adult males to do the work of law.
137. Miller, supra note 71, at 232.
138. Byock, supra note 77, at 231-32
139. Miller, supra note 71, at 234.
140. Miller, supra note 71, at 239.
141. id. at 234-238.
142. Peter Dinunzio et al., Karl N. Llewellyn: How Icelandic Saga Literature Influenced the Scholarship and Life of an American Legal Realist, 39 CONN. L. REV. 1923, 1936 (2007) ('Parties were free to abandon the proceedings at anytime and engage in bloody attacks against the opposing party. As a result, the specter of violence loomed at every stage of a lawsuit...').
143. Miller, supra note 71, at 239.
144. Id. at 238-39.
145. Id. at 238.
146. Though violence could be used against offenders, it was nevertheless a precarious enforcement mechanism. Attempting to kill another person, after all, is a dangerous activity and most people were not eager to try.
147. id. at 211.
148. While there is uncertainty about when exactly the canon law first constituted what could be considered a cohesive 'legal system,' most scholars assert that by the second or third century, the church had developed a structure of episcopal courts with sufficient hierarchical authority to discipline recalcitrant members.
149. JAMES A. BRUNDAGE, MEDIEVAL CANON LAW 7-9 (1995) (noting how Constantine I's acceptance of the Christian church coincided with more regular meetings of church councils and synodal assemblies, which aided in the development of an ecclesiastical organizational structure and a more clearly enunciated authority for bishops over their congregants)
150. ELISABETH VODOLA, EXCOMMUNICATION IN THE MIDDLE AGES 7 (1986) (noting that although '[l]ittle is known of early ecclesiastical institutions,' hierarchical institutions existed by the second century and episcopal courts had disciplinary authority by the third century). This system of rules, first created and enforced over 1700 years ago, continues to be used today.
151. R. H. HELMHOLZ, THE SPIRIT OF CLASSICAL CANON LAW 1 (1996) (noting that large sections of canon law were still in force in nineteenth-century England, that many canon law rules have taken root in modern English and American law, and that courts of the Catholic Church still use this legal regime).
152. Most scholars mark the beginning of the 'classical period' at some point in the twelfth century, with the development of a progressively more complex and centralized legal regime that the Church applied with greater uniformity. For a full discussion of the beginnings of the classical period.
153. Charles homer haskins, THE RENAISSANCE OF THE TWELFTH CENTURY (1927), which describes the intellectual reinvigoration that marked this period
154. Helmholz, supra note 118
155. James A. Brundage, THE PROFESSION AND PRACTICE OF MEDIEVAL CANON LAW 26-63 (1988). Marking the 'end' of the classical period of canon law is more difficult. Most scholars mark 1234 as the end of the period of prominence for Gratian's Decretum, a date which coincides with the decision of Pope Gregory IX to send his own decretals to the preeminent universities in Bologna and Paris and marks a time of transition when the classical canon law developed into a broader legal tradition referred to as the ius commune.
156. Anders Winroth, THE MAKING OF GRATIAN'S DECRETUM (2007) (examining the original version of the Decretum and the legal and intellectual developments surrounding its creation)
157. Kenneth Pennington, The Decretalists 1190 to 1234, in THE HISTORY OF MEDIEVAL CANON LAW IN THE CLASSICAL PERIOD, 1140-1234: FROM GRATIAN TO THE DECRETALS OF POPE GREGORY IX, at 211, 245 (Wilfried Hartmann & Kenneth Pennington eds., 2008) [hereinafter THE HISTORY OF MEDIEVAL CANON LAW]. Yet the end of Gratian's prominence is not generally considered to be when the classical period also ended. Indeed, the Code of Canon Law that existed in the time of Gratian was only significantly reformed with the promulgation of a new code in 1917. Prior to 1917, the most significant reform of canon law-impelled by the Protestant Reformation-occurred with the Council of Trent, which met from 1562-63 and significantly amended, clarified, and added new doctrine to the corpus of canon law that had existed in 1140.
158. James A. Coriden, AN INTRODUCTION TO CANON LAW 10, 15-20 (rev. ed. 2004) (discussing what Coriden identifies as the seven different periods in the development of canon law and marking the difference between the classical period and a period of decline and reform as beginning around the time of the Protestant Reformation).
159. Brundage, supra note 118, at 48. While the date of composition and first appearance of the Decretum is uncertain, it is customary to consider its first publication in 1140.
160. Helmholz, supra note 118, at 7. For a detailed description of the writing of the Decretum and a full discussion of both the revisions of the document and the important additions made to Gratian's work
161. Michael H. Hoeflich & Jasonne M. Grabher, The Establishment of Normative Legal Texts: The Beginnings of the Ius Commune, in THE HISTORY OF MEDIEVAL CANON LAW, supra note 119, at 1, 1-21.
162. For a full discussion of the Decretum's influence on classical canon law, see, for example, James A. Brundage, The Teaching and Study of Canon Law in the Law Schools, in THE HISTORY OF MEDIEVAL CANON LAW, supra note 119, at 98, 98-120, which describes the growth in complexity of the canon law as a result of Gratian and the coinciding growth in law schools with scholars dedicated specifically to the study of canon law
163. HELMHOLZ, supra note 118, at 7-10.
164. BRUNDAGE, supra note 118, at 48.
165. id. at 44-54.
166. Id. at 120.
167. Id. at 121-22.
168. For further discussion of the development of the episcopal court system in the twelfth and thirteenth centuries, see id. Lesser prelates, such as archdeacons, also developed courts of their own. These courts concerned themselves with minor disputes not sufficiently important to warrant episcopal attention and with the enforcement of disciplinary rules of the Church. Thus, these lesser courts punished sexual misbehavior, drunkenness, violations of the Sabbath, and so on. Archdeacons, too, responded to the rising tide of litigation by delegating their judicial responsibilities to trained legal professionals to adjudicate cases that would ordinarily come before them. For a full discussion of the powers and responsibilities of different classes of clerics
169. id. at 122-23.
170. Id. at 123.
171. Id. at 124.
172. Id. at 123-25.
173. Id. at 125.
174. For a full discussion of papal oversight of issues arising in canon law,
175. id. at 124-26.
176. BRUNDAGE, supra note 119, at 30-35 (describing what the author identifies as four separate stages in the professionalization of canon lawyers and explaining how with this increasing professionalization, a canon lawyer's caseload became larger and often more complex)
177. VODOLA, supra note 118, at 35 ('In another way, too, canon law had become more concerned with law and legal practice. university training in jurisprudence, and especially study of the Corpus iuris civilis, had intensified the canonists' focus on purely juristic themes...').
178. Matthew 5:39 (King James)
179. HELMHOLZ, supra note 118, at 339-40, 344 (documenting the general discussion amongst ecclesiastical officials over the use of temporal sanctions and citing Gratian's Decretum)
180. VODOLA, supra note 118, at 2-12 (noting other sources of ecclesiastical and biblical authority authorizing excommunication).
181. HELMHOLZ, supra note 118, at 345-47.
182. Id. at 348.
183. For a full discussion of how and when Church figures could use temporal power
184. id. At 344-48.
185. For a general discussion of major and minor excommunication
186. id. at 370-84.
187. Id. at 375.
188. Persons could only be excommunicated by judicial superiors.
189. Id. at 376. Thus, bishops could not be excommunicated by bishops but only by archbishops or higher.
190. Id. at 376.
191. For a discussion of the overriding 'medicinal' purpose of excommunication.
192. id. at 376-78.
193. id. at 377 (quoting Joannes Andreae, a fourteenth-century legal scholar, as stating that 'the prelate, as a doctor, who sees that the medicine of excommunication, even if justly imposed, is not helpful but rather detrimental may discreetly remove it even during contumacy, if he sees that this will be useful to the health of the person excommunicated').
194. Id. at 383-85.
195. Id. at 385. Out of concern that those to be excommunicated receive due process, Gratian was particularly wary of excommunication latae sententiae, precisely because this form of excommunication did not give the excommunicate a judicial avenue to contest the sanction.
196. VODOLA, supra note 118, at 29-30.
197. For a full discussion of these two perspectives,
198. HELMHOLZ, supra note 118, at 350-57. For a discussion of the concept of 'relaxing' a sinner 'to the secular arm,' especially as the process applied to early instances of heresy
199. Joseph Prud'homme, Dissent and the Death Penalty: Developing a Comparative Perspective, in AUGUSTINE AND HISTORY 91, 115 (Christopher T. Daly, John Doody & Kim Paffenroth eds., 2008). Helmholz divides these two camps into those adopting the Gelasian view and those adhering to a hierocratic perspective. Those espousing the former position held that temporal authority and spiritual authority were 'two jurisdictions [that] were independent but mutually supportive.'
200. HELMHOLZ, supra note 118, at 351. In contrast, as Church leaders found it useful to infer a duty on the part of the state to aid in effectuating ecclesiastical dictates, they began to promote the hierocratic view. As the name implies, this position held that a temporal authority had to enforce the mandates of the Church on pain of excommunication.
201. Id. at 352-53. Interestingly, Vodola notes a tension in exerting pressure, through excommunication, on leaders who refused to follow Church directives, and the need to avoid fanning the flames of anticlerical movements, particularly those in France.
202. VODOLA, supra note 118, at 140, 161-64.
203. For a full discussion of the varying ways temporal authorities enforced excommunication regimes
204. HELMHOLZ, supra note 118, at 357-59.
205. An excommunicate, while excluded from Church rituals or the community itself, was not damned merely by nature of the excommunication: such a final determination on the fate of one's soul could only be made by God.
206. R. H. HELMHOLZ, CANON LAW AND THE LAW OF ENGLAND 108 (1987) (stating that 'earthly excommunication did not represent a final determination' given that the sanction was always subject to 'reversal by God' and '[u]njust sentences were inevitable').
207. Numerous scholars of classical canon law have suggested that the sanction was overused and had become less effective by the time of the Reformation. Helmholz, for example, cites one late-medieval commentator on canon law as saying that the practice had come to be used for trivial purposes and had 'wrought confusion in the church.'
208. Helmholz, supra note 118, at 390. He quotes another French 'provincial estate' as saying that excommunication was used so indiscriminately that 'the greater part of the population was excommunicated.'
209. Id. at 391
210. HELMHOLZ, supra note 147, at 102 (noting the common perception that excommunication ceased to be effective because its 'misuse' caused a 'decline in respect for the Church and clergy, or with a more general breakdown in societal order')
211. David C. Brown, The Keys of the Kingdom: Excommunication in Colonial Massachusetts, 67 NEW ENG. Q. 531, 535 (1994) (explaining the Church's power to separate a sinner from communion with other Christians)
212. Rosalind Hill, The Theory and Practice of Excommunication in Medieval England, HIST., Feb. 1957, at 11 (arguing that the sanction was overused and had become trivialized as a minor inconvenience). While the excessive use of excommunication no doubt diminished its effectiveness, this would be true for any sanction, even those administered by regimes with internalized enforcement mechanisms.
213. Minor excommunication was a form of internalized outcasting because it was carried out by the clergy.
214. As mentioned before, relaxation to the secular arm became an option only in certain countries and only after the beginning of the thirteenth century. It follows, therefore, that neither internalized nor externalized violence is necessary for legality.
215. While states play a central enforcement role in federal environmental law, enforcement does not fall on states alone. The federal government, through administrative agencies, and individual citizens, through citizen suits, contribute to the enforcement effort.
216. 42 U.S.C. § 7401(b)(1) (2006).
217. Id. § 7407(a).
218. Id. § 7410(a)(2)(A).
219. The Clean Air Act vests the Environmental Protection Agency with sanctioning authority as well.
220. Id. § 7410(m).
221. Id. § 7420(a)(2)(A).
222. Outcasting bears a strong resemblance to Anthony D'Amato's concept of reciprocal entitlement violation. According to D'Amato, international law is enforced by allowing victim states to violate the rights of offending states.
223. D'Amato, supra note 6, at 1310-13. There are three main differences, however, between outcasting and reciprocal entitlement violation. First, outcasting does not necessarily involve the violation of an entitlement. Consider boycotts. By refusing to trade with another, the outcaster declines to exercise her own entitlement to trade, rather than violate any of the rights of the outcasted. Second, D'Amato conceives of reciprocal entitlement violations as internalized violent enforcement
224. id. at 1313, whereas outcasting is nonviolent and neutral as between internal and external enforcement. Third, D'Amato treats reciprocal entitlement violations as permissive and first-party countermeasures
225. id. at 1310-13, whereas outcasting comes in mandatory and third-party varieties as well. See infra text accompanying note 181 and text following note 210.
226. See supra text accompanying note 145.
227. For discussion of internal physical enforcement of international law
228. see supra Section II.A.
229. See supra Section II.B.
230. Article 43 of the U.N. Charter calls on member states to make 'a special agreement or agreements' to provide armed forces to the Security Council in order to form a standing U.N. army. To date, no member state has signed a special agreement with the United Nations. U.N. Charter art. 43.
231. S.C. Res. 83, U.N. Doc. S/RES/83 (June 27, 1950).
232. S.C. Res. 678, ¶ 2, U.N. Doc. S/RES/678 (Nov. 29, 1990).
233. Id. ¶¶ 3-4.
234. See supra Section II. B.
235. Article 51 provides, in part: 'Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.' U.N. Charter art. 51.
236. See supra notes 138, 147-148.
237. Working for Health: An Introduction to the World Health Organization, WORLD HEALTH ORG. (2007), http://www.who.int/about/brochure_en.pdf.
238. Constitution of the World Health Organization, art. 11, July 22, 1946, 62 Stat. 2679, 14 U.N.T.S. 185 ('Each Member shall be represented by not more than three delegates, one of whom shall be designated by the Member as chief delegate.').
239. Id. arts. 16-18, 24, 28-29.
240. Id. arts. 21-22.
241. Id. art. 7.
242. Hippler Bello, supra note 38, at 417.
243. Of course, the loss of protection is not as complete as it is for the full outlaw. Instead, the loss of protection, and hence permissible retaliation by the victim, is limited to an amount approved by the Dispute Settlement Body. The principle nonetheless remains the same: the law is enforced by lifting the legal protections ordinarily enjoyed by the offender and allowing external actors to retaliate without fear of sanction.
244. It is worth pausing to note that in international law, internal and external outcasting often occur hand-in-hand. A state found in violation of an international legal regime will often lose its voting rights or other rights to participate in the governance of the regime (internal outcasting), while at the same time losing the right to claim the protections or other benefits enjoyed by members of the legal regime (external outcasting).
245. Abram Chayes & Antonia Handler Chayes, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 68-87 (1995) (discussing 'membership sanctions,' which frequently encompass both internal and external outcasting). Alternatively, a legal regime might provide for internal outcasting for some types of violations (for example, nonpayment of membership fees), and external outcasting for other types of violations (for example, violation of the substantive norms of the international legal regime). Our claim is not that these are mutually exclusive modes of enforcement but that they can-and should-be logically distinguished.
246. U.N. Charter art. 41.
247. One of us has elaborated on the 'collateral consequences' that might result from a country's decision to comply or not comply with a treaty regime. See Oona A. Hathaway, Between Power and Principle: An Integrated Theory of International Law, 72 U. CHI. L. REV. 469 (2005).
248. Ryan Goodman & Derek Jinks, SOCIALIZING STATES: PROMOTING HUMAN RIGHTS THROUGH INTERNATIONAL LAW (forthcoming 2012);
249. Margaret e. Keck & kathryn sikkink, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS (1998).
250. Emilie M. Hafner-Burton, Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem, 62 INT'L ORG. 689 (2008).
251. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997) (reviewing ABRAM CHAYES AND ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY (1995) and THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995)). Similarly, the so-called 'English School' has made related arguments about the socialization of states.
252. Hedley Bull, THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS (1977).
253. ANDREW HURRELL, ON GLOBAL ORDER: POWER, VALUES, AND THE CONSTITUTION OF INTERNATIONAL SOCIETY (2007). For more on norm-based theories of law enforcement.
254. Oona A. Hathaway & Harold Hongju Koh, FOUNDATIONS OF INTERNATIONAL LAW AND POLITICS 111-204 (2005).
255. One of the authors' own work is no exception. See Hathaway, supra note 177.
256. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J. 1935 (2002).
257. Oona A. Hathaway, The Cost of Commitment, 55 STAN. L. REV. 1821 (2003).
258. Oona A. Hathaway, Why Do Countries Commit to Human Rights Treaties?, 51 J. CONFLICT RESOL. 588 (2007).
259. The five categories outlined here are not exhaustive, but they do identify what we regard as the most salient characteristics of outcasting regimes.
260. We presume that the decision of whether to outcast a state or not is always permissive. This category thus applies not to the decision of whether to render a state an outcast in response to its law-violating behavior but of whether to treat the outcast state differently as a result of its outcast status.
261. U.N. Charter art. 39.
262. Id. art. 41 ('The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.').
263. Id. art. 48, para. 1 (emphasis added). In addition, under Article 49 of the Charter, 'The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.'
264. Id. art. 49 (emphasis added).
265. S.C. Res. 748, U.N. Doc. S/RES/748 (Mar. 31, 1992).
266. Id. ¶ 2.
267. Id. ¶ 3 (emphasis added). The Security Council later expanded sanctions to require states with 'financial resources. owned or controlled' by Libya to 'freeze such funds and financial resources.' S.C. Res. 883, ¶ 3, U.N. Doc. S/RES/883 (Nov. 11, 1993). And in 1998, the Security Council again reiterated its demands that Libya comply with the earlier resolutions, ordered Libya to transfer those accused in the Lockerbie bombing to the Netherlands for trial, and threatened 'additional measures if the two accused have not arrived or appeared for trial promptly.' S.C. Res. 1192, ¶ 9, U.N. Doc. S/RES/1192 (Aug. 27, 1998).
268. S.C. Res. 1506, U.N. Doc. S/RES/1506 (Sept. 12, 2003).
269. Libyan Sanctions Regulations, 31 C.F.R. § 550 (2011). The U.S. Department of State listed Libya as a state sponsoring terrorism from 2000 to 2005, meaning that it remained in a restrictive export-licensing category. Country Reports on Terrorism, U.S. DEP'T OF STATE, http://www.state.gov/s/ct/rls/crt (last visited Oct. 13, 2011). On June 30, 2006, 'the United States rescinded Libya's designation as a state sponsors [sic] of terrorism.' Country Reports on Terrorism 2006, U.S. DEP'T OF STATE, http://www.state.gov/s/ct/rls/crt/2006/82733.htm (last updated May 1, 2007). Nonetheless, lifting of the sanctions regime meant that nonstrategic trade, financial transactions, and investment in Libya were permitted.
270. GDP Growth (Annual %), THE WORLD BANK, http://data.worldbank.org/indicator/ NY.GDP.MKTP.KD.ZG (last visited May 20, 2011). This is not the only such example. Between 1946 and 2002, the Security Council used its Chapter VII authority to impose sanctions dozens of times, including against Rhodesia, South Africa, Iraq, Yugoslavia, Somalia, and Libya.
271. Patrik Johansson, U.N. SECURITY COUNCIL CHAPTER VII RESOLUTIONS, 1946-2002-AN INVENTORY (2003). Text of the resolutions from 1946 through 2009 is available at http://www.un.org/documents/scres.htm.
272. Rep. of the Int'l Law Comm'n, 53rd sess., Apr. 23-June 1, July 2-Aug. 10, 2001, U.N. Doc. A/56/10; GAOR 56th Sess., Supp. No. 10, at 324 (2001).
273. U.N. Int'l Law Comm'n Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, arts. 51, 53 in Rep. of the Int'l Law Comm'n, U.N. GAOR, 53d Sess., Supp. No. 10, A/56/20 (2001) [hereinafter ILC Draft Articles and Commentary].
274. The ILC's articles on state responsibility provide that countermeasures may not be taken or must be suspended if the 'wrongful act has ceased' and 'the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties.' Id. art. 52, para. 3.
275. Air Serv. Agreement of 27 Mar. 1946 (U.S. v. Fr.), 18 R.I.A.A. 417 (Int'l Arb. Trib, 1978).
276. Hjortur B. Sverrisson, COUNTERMEASURES, THE INTERNATIONAL LEGAL SYSTEM, AND ENVIRONMENTAL VIOLATIONS 92 (2008).
277. David J. Bederman, Counterintuiting Countermeasures, 96 AM. J. INT'L L. 817-820 (2002). For more on the relationship between countermeasures and the Air Service Agreement case, see MATH NOORTMANN, ENFORCING INTERNATIONAL LAW: FROM SELF-HELP TO SELF-CONTAINED REGIMES 35 (2005)
278. Moreover, cross-countermeasures can be divided into related and unrelated crosscountermeasures. Related cross-countermeasures are countermeasures that, while non-inkind, are directly connected to the benefits the outcast denied to other members. For example, as we describe infra text accompanying notes 211-216, the Montreal Protocol on Substances That Deplete the Ozone Layer provides that states may lose their rights to trade in ozone-depleting substances if they fail to comply with their obligations under the Protocol to limit their production and consumption of such substances. The regime denies the outcast a different kind, class, or category of benefits (loss of trading rights in return for environmental pollution) and is thus non-in-kind, but the benefits are related (trading rights in ozone-depleting substances in return for excess production or consumption of ozone-depleting substances). Unrelated cross-countermeasures, by contrast, are countermeasures that are not directly connected in this way. For example, the European Convention on Human Rights provides that states may be expelled from the Council of Europe for failing to comply with the obligation under the Convention not to torture. See infra text accompanying notes 201-204.
279. The UPU, UNIVERSAL POSTAL UNION, http://www.upu.int/en/the-upu/the-upu.html (last visited Oct. 10, 2011).
280. Treaty Concerning the Formation of a General Postal Union, Oct. 9, 1874, 19 Stat. 577. The UPU was originally called the 'General Postal Union.'
281. Treaty Concerning the Formation of a General Postal Union, supra note 198, arts. 2, 3, 9.
282. Additional Protocol to the Constitution of the Universal Postal Union, Nov. 14, 1969, 22 U.S.T. 1056, 810 U.N.T.S. 7.
283. George A. Codding, THE UNIVERSAL POSTAL UNION: COORDINATOR OF THE INTERNATIONAL MAILS 97 (1964).
284. Universal Postal Convention art. 72, July 5, 1947, 62 Stat. 3157, 4 T.I.A.S. 482 (terminated by the Universal Postal Convention, July 11, 1952, 4 U.S.T. 1118, 169 U.N.T.S. 3) ('When a country does not observe the provisions of Article 28 concerning freedom of transit, Administrations have the right to discontinue postal service with that country. They must give advance notice of that measure by telegraph to the Administrations concerned.'). A nearly identical provision appeared, as well, in the 1952 Convention, which superseded the 1948 Convention. Universal Postal Convention art. 33, July 11, 1952, 4 U.S.T. 1118, 163 U.N.T.S. 3.
285. Codding, supra note 199, at 112 (noting that 'a similar article has been included in postal conventions since 1920').
286. European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222. The Convention may be enforced through submissions to the European Court of Human Rights.
287. Id. art. 33 ('Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party.').
288. id. art. 34 ('The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.').
289. The Statute of the Council of Europe provides that '[a]ny member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7.' Statute of the Council of Europe art. 8, May 5, 1949, 87 U.N.T.S. 103. Article 3 provides: 'Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.'
290. Id. art. 3.
291. Id. art. 8.
292. Complete List of the Council of Europe's Treaties, COUNCIL OF EUR., http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG (last visited Sept. 22, 2011) (listing 210 Council of Europe treaties).
293. ILC Draft Articles and Commentary, supra note 193, art. 51.
294. Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 AM. J. INT'L L. 715-716 (2008).
295. Air Serv. Agreement (Fr. v. U.S.), 18 R.I.A.A. 416, para. 83 (1978).
296. ILC Draft Articles and Commentary, supra note 193, art. 51 commentary.
297. U.N. Charter art. 39.
298. DSU, supra note 33, art. 22.
299. Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, S. TREATY DOC. No. 100-10, 1522 U.N.T.S. 29 [hereinafter Montreal Protocol]. The Montreal Protocol is a protocol to the Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, T.I.A.S. No. 11,097, 1513 U.N.T.S. 324.
300. Montreal Protocol, supra note 211, arts. 2-3, 5-7.
301. Id. art. 4.
302. UNITED NATIONS ENV'T PROGRAMME, HANDBOOK FOR THE INTERNATIONAL TREATIES FOR THE PROTECTION OF THE OZONE LAYER 297 (6th ed. 2003).
303. Duncan Brack, Monitoring the Montreal Protocol, in VERIFICATION YEARBOOK 2003, at 209, 220-21 (Trevor Findlay ed., 2003). State parties that fail to comply with any aspect of the treaty are initially engaged in an iterative nonconfrontational exchange meant to bring them back into compliance with the Protocol.
304. Id. at 216-24.
305. Treaty on the Non-Proliferation of Nuclear Weapons art. 3, opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161.
306. Promoting Science and Technology, INT'L ATOMIC ENERGY AGENCY, http://www.iaea.org/ OurWork/ST/index.html (last visited June 20, 2011).
307. David Fischer, HISTORY OF THE INTERNATIONAL ATOMIC ENERGY AGENCY: THE FIRST 40 YEARS 290 (1997) ('On 10 June 1994, the IAEA Board of Governors decided to suspend all IAEA technical assistance to the DPRK.').
308. Tom Tyler has extensively and persuasively argued that procedural justice contributes importantly to the legitimacy of the law and hence to people's willingness to comply with it.
309. Tom R. Tyler, WHY PEOPLE COOPERATE 93-95 (2011).
310. Tom R. Tyler, WHY PEOPLE OBEY THE LAW 104-57 (2006).
311. In this case, the third-party economic sanctions were mandatory, but they can also be permissive.s
312. Elena Katselli Proukaki, THE PROBLEM OF ENFORCEMENT IN INTERNATIONAL LAW: COUNTERMEASURES, THE NON-INJURED STATE AND THE IDEA OF INTERNATIONAL COMMUNITY 74 (2010).
313. The only in-kind, nonproportional regime for which we find real-world examples is discussed in Subsection V.C.4 below ('Three Steps Removed: Adjudicated, Nonproportional, and Third Parties Included'). The only non-in-kind, proportional, nonadjudicated regime for which we find real-world examples is discussed in Subsection V.C.5 below ('Three Steps Removed: Mandatory, Non-in-Kind, and Third Parties Included'). The only third-partiesincluded, nonadjudicated regime for which we find real-world examples is also discussed in Subsection V.C.5 below ('Three Steps Removed: Mandatory, Non-in-Kind, and Third Parties Included'). We find not a single real-world example of a mandatory, first-partiesonly regime. Again, however, we emphasize that our survey is not exhaustive and that there may be real-world examples of these regimes that we have not yet identified.
314. ILC Draft Articles and Commentary, supra note 193, art. 48 commentary (internal citation omitted).
315. Vienna Convention on the Law of Treaties art. 60, May 23, 1969, 1155 U.N.T.S. 331.
316. Article 60 operates very much like customary countermeasures, but with one key difference: countermeasures temporarily suspend only the obligations of the wronged state, whereas Article 60 allows the wronged party to either formally suspend or permanently terminate the treaty obligations of both parties in whole or in part. Rep. of the Int'l Law Comm'n.
317. supra note 191, at 324.
318. See North American Free Trade Agreement ch. 11, Dec. 8, 1993, 107 Stat. 2057 [hereinafter NAFTA], available at http://www.sice.oas.org/trade/NAFTA/chap-111.asp.
319. Id. arts. 1120-37.
320. Id. art. 1136.
321. Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Award ¶ 131 (Aug. 30, 2000), 5 ICSID Rep. 212 (2002), available at http://naftaclaims.com/Disputes/ Mexico/Metalclad/MetalcladFinalAward.pdf.
322. Indeed, Chapter Eleven has come under fire from public interest groups for precisely this reason. See Mary Bottari & Lori Wallach, PUB. CITIZENS GLOBAL TRADE WATCH, NAFTA CHAPTER 11 INVESTOR-STATE CASES: LESSONS FOR THE CENTRAL AMERICA FREE TRADE AGREEMENT, at viii (2005), available at http://www.citizen.org/documents/NAFTAReport_Final.pdf ('[T]he sovereign immunity shield-the long-standing common law principle that governments cannot be sued for certain types of activities-does not apply in NAFTA's private tribunal system. This means that foreign investors are empowered to sue the United States for cash compensation over federal, state and local policies in instances when U.S. residents and companies would have no such right.').
323. That commitment, in turn, is given force by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (entered into force June 7, 1959).
324. U.S. Model Treaty Concerning the Reciprocal Encouragement and Protection of Investment, Feb. 24, 1984, reprinted in 4 INT'L TAX & BUS. LAW. 136 (1986).
325. 5 art. 24.
326. Statute of the International Court of Justice, June 26, 1945, art. 36, 59 Stat. 1055, 1060, T.S. No. 993.
327. Id. art. 36(2)(d).
328. Mission, INT'L COFFEE ORG., http://dev.ico.org/mission.asp?section=About_Us (last visited Jan. 18, 2010).
329. International Coffee Agreement art. 46, Sept. 28, 2007, available at http://www.ico.org/ documents/ica2007e.pdf ('If the Council decides that any Member is in breach of its obligations under this Agreement and decides further that such breach significantly impairs the operation of this Agreement, it may exclude such Member from the Organization. The Council shall immediately notify the Depositary of any such decision. Ninety days after the date of the Council's decision, such Member shall cease to be a Member of the Organization and a Party to this Agreement.').
330. Id. art. 1(1).
331. The Management Authority of the State (which the treaty requires each state party to designate) must issue an export permit or re-export certificate. The Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243, arts. III-VI, IX [hereinafter CITES]. The Convention separates covered species into three categories, each with different trade restrictions. Id. For a sample permit form, see http://www.cites.org/eng/res/12/E12-03R14A2.pdf.
332. CITES, supra note 241, art. X.
333. How CITES Works, CONVENTION ON INT'L TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA, http://www.cites.org/eng/disc/how.shtml (last visited Oct. 13, 2011).
334. Although not specified in the treaty itself, the Conference of the Parties and the Standing Committee have adopted a process of recommending suspension of trade in response to significant trade in an endangered species by a state party in violation of the Convention. When a state party violates the terms of the treaty, the Conference of the Parties can recommend a temporary suspension of trade with the violating state. In an effort to improve the effectiveness of the Convention, this has become an increasingly frequent practice. (For a list of all countries currently subject to such trade suspensions,
335. Countries Currently Subject to a Recommendation To Suspend Trade, CONVENTION ON INT'L TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA, http://www.cites.org/eng/resources/ref/suspend.php (last updated Sept. 14, 2011).) The State that has violated a provision of the treaty may respond to the recommendation to suspend trade by enacting required legislation, reducing illegal trade, submitting missing annual reports, or otherwise responding to specific recommendations of the Standing Committee. If it takes the actions necessary to bring its practices into compliance, the recommendation to suspend trade is immediately withdrawn. Id. ('Recommendations to suspend trade are withdrawn immediately upon a country's return to compliance.'). This constitutes a permissive adjudicated outcasting regime-one that matches the variation described in Subsection V.C.7 below.
336. See supra text accompanying note 222.
337. Rome Statute of the International Criminal Court art. 5, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].
338. Id. arts. 12-17.
339. The substantive and procedural mechanics of complementarity under the ICC are covered by Articles 17-19 of the Rome Statute. Substantively, Article 17 requires the Court to find a case 'inadmissible' if the case 'is being investigated or prosecuted by a State which has jurisdiction over it,'
340. id. art. 17, para. 1(a), or 'has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute,'
341. id. art. 17, para. 1(b). The ICC can only abrogate the right of a state to prosecute if the state is 'unwilling or unable' to carry out an investigation and prosecution.
342. Id. art. 17, para. 1(a). Procedurally, the Prosecutor must notify parties upon initiating investigations and must give states one month to respond as to whether investigations are already being undertaken by the state.
343. Id. art. 18, para. 1-2 (stating that the Prosecutor must notify 'all States Parties and those States which. would normally exercise jurisdiction over the crimes concerned'). If a country notifies the Prosecutor that it is conducting its own investigation, the Prosecutor cannot proceed unless a Pre-Trial Chamber authorizes the investigation.
344. Id. art. 18, para. 2. Moreover, the issue of complementarity need not be raised by one of the parties; the ICC can 'on its own motion' determine whether a case should be left for prosecution to national courts.
345. Id. art. 19, para. 1. For more on complementarity,
346. Mohamed M. El Zeidy, The Principle of Complementarity: A New Machinery To Implement International Criminal Law, 23 MICH. J. INT'L L. 869 (2002).
347. Jann K. Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law, 1 J. INT'L CRIM. JUST. 86, 86-87 (2003).
348. Anne-Marie Slaughter, A Liberal Theory of International Law, 94 AM. SOC'Y INT'L L. PROC. 240-247 (2000).
349. Rome Statute, supra note 246, arts. 13-15.
350. Id. art. 15, para. 4.
351. U.N. Charter art. 39. Article 103 of the U.N. Charter states, 'In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.'
352. Id. art. 103. Hence if a Security Council resolution calling for economic sanctions conflicts with obligations a state may have under a trade agreement, the resolution prevails.
353. U.N. Charter art. 2, para. 4.
354. S.C. Res. 134, U.N. Doc. S/RES/134 (Apr. 1, 1960).
355. G.A. Res. 1761, ¶ 2, U.N. Doc. A/RES/1761 (Nov. 6, 1962).
356. Id. ¶ 4.
357. S.C. Res. 181, U.N. Doc. S/RES/181 (Aug. 7, 1963).
358. S.C. Res. 418, U.N. Doc. S/RES/418 (Nov. 4, 1977). The arms embargo was strengthened and expanded by S.C. Res. 591, U.N. Doc. S/RES/591 (Nov. 28, 1986). The restrictions were lifted by Resolution 919 in 1994. U.N. Doc. S/RES/919 (May 25, 1994).
359. U.N. Charter art. 39.
360. See supra text accompanying notes 185-190.
361. S.C. Res. 748, ¶ 3, U.N. Doc. S/RES/748 (Mar. 31, 1992) (emphasis added). The Security Council later expanded sanctions to require states with 'financial resources. owned or controlled' by Libya to 'freeze such funds and financial resources.' S.C. Res. 883, U.N. Doc. S/RES/883 (Nov. 11, 1993). And in 1998, the Security Council again reiterated its demands that Libya comply with the earlier resolutions, ordered Libya to transfer those accused in the Lockerbie bombing to the Netherlands for trial, and threatened 'additional measures if the two accused have not arrived or appeared for trial promptly.' S.C. Res. 1192, U.N. Doc. S/RES/1192 (Aug. 27, 1998).
362. Raymond Paretzky, Comment, The United States Arms Embargo Against South Africa: An Analysis of the Laws, Regulations, and Loopholes, 12 YALE J. INT'L L. 133-134 (1987) ('On November 4, 1977, the United States joined in the unanimous vote of the United Nations Security Council adopting Security Council Resolution 418, which established a mandatory arms embargo against the Republic of South Africa. This resolution succeeded Security Council Resolution 181, a non-binding call to all nations to adhere voluntarily to an arms embargo, which had been in effect from 1963 to 1977.' (footnotes omitted)).
363. Ibrahim J. Gassama, Reaffirming Faith in the Dignity of Each Human Being: The United Nations, NGOs, and Apartheid, 19 FORDHAM INT'L L.J. 1464-1486 n.85 (1996) (citing 1963 U.N.Y.B. 18, U.N. Sales No. 64.I.1).
364. See id. at 1485 n.81 (citing Resolutions Adopted and Decisions Taken by the Security Council in 1963, U.N. SCOR, 18th Sess., 1041st mtg. at 6, U.N. Doc. S/5386 (1963)). Mandatory sanctions, however, later proved more politically palatable than outcasting South Africa from the United Nations altogether-a proposal made and rejected in 1974, a few years before the arms embargo was made mandatory.
365. David Lawther Johnson, Comment, Sanctions and South Africa, 19 HARV. INT'L L.J. 887, 916 (1978).
366. The Court is, at present, the most active international court in existence, with more than 30,000-50,000 new applications lodged every year. The Court has arguably been a victim of its own success. Its ability to process complaints cannot keep up with the rate at which they arrive. In 2009, the Court had a backlog of over 120,000 cases. Profile: European Court of Human Rights, BBC NEWS (Dec. 1, 2010), http://news.bbc.co.uk/2/hi/europe/country _profiles/4789300.stm. A case begins when an individual or state files a complaint or'application' alleging a violation of the Convention. Convention for the Protection of Human Rights and Fundamental Freedoms arts. 33-35, Nov. 4, 1950, 213 U.N.T.S. 222.
367. The first type of remedy provided by the Court-'individual measures'-aims to address the harm to the individual complainant as a result of the violation and to achieve, as far as possible, 'restitutio in integrum.' COUNCIL OF EUR., SUPERVISION OF THE EXECUTION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS, 3RD ANNUAL REPORT 2009, at 18 (2010), available at http://www.coe.int/t/dghl/monitoring/execution/Source/Publications/CM_annreport2009_en.pdf. States may also be ordered to take 'general measures,' which aim to put an end to similar violations in the future. Id.
368. Article 46 of the Convention clarifies that state parties to the Convention must comply with decisions of the Court. Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 263, art. 46 ('The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.'). The Court automatically transmits the file to the Committee of Ministers of the Council of Europe after rendering a final judgment and the Committee is charged with executing the judgment.
369. Elisabeth Lambert-Abdelgawad, THE EXECUTION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS 38-39 (2002), available at http://www.echr.coe.int/NR/rdonlyres/5BDDF858-F85B-4523-BD58-27243CB2F03C/0/DG2ENHRFILES192002.pdf.
370. supra text accompanying notes 211-216.
371. Montreal Protocol, supra note 211, art. 4.
372. Indicative List of Measures That Might Be Taken by a Meeting of the Parties in Respect of Non-Compliance with the Protocol, § C, in U.N. ENV'T PROGRAMME, HANDBOOK FOR THE INTERNATIONAL TREATIES FOR THE PROTECTION OF THE OZONE LAYER 297 (6th ed. 2003).
373. In addition to the limits noted below, outcasting regimes are limited by their reliance on detection of violations. Where violations of the law are difficult to detect, an outcasting regime will likely be ineffective in generating compliance. For example, regulations of oil pollution at sea-covered by a separate section of MARPOL from the equipment certification scheme described above-have long been hampered by the difficulty of connecting pollution to the source.
374. Ronald Mitchell, Moira L. McConnell, Alexei Roginko & Ann Barrett, International Vessel-Source Oil Pollution, in THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL REGIMES: CAUSAL CONNECTIONS AND BEHAVIORAL MECHANISMS 43 (Oran R. Young ed., 1999). In this respect, however, outcasting is far from alone. Any enforcement regime relies on detection of violations. Where violations go undetected, enforcement will necessarily be lax and ineffective.
375. David Singh Grewal makes a related observation in DAVID SINGH GREWAL, NETWORK POWER: THE SOCIAL DYNAMICS OF GLOBALIZATION (2008). He observes that the more widespread a norm or practice that facilitates cooperation is, the greater the network power that norm or practice may hold-a dynamic he notes can generate resentment as well as cooperative behavior.
376. United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services (Current Status Summary), WORLD TRADE ORG. (Feb. 24, 2010), http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm.
377. U.N. Stat. Div., Antigua and Barbuda, WORLD STATISTICS POCKETBOOK (2011), available at http://data.un.org/CountryProfile.aspx?crName=Antigua%20and%20Barbuda.
378. Antigua spends 0.5% of its GDP on its military. It ranks 161st in the world in its military expenditures as a portion of GDP. CIA, Antigua and Barbuda, THE WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-factbook/geos/ac.html (last updated Sept. 27, 2011).
379. International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, as modified by Protocol of 1978, opened for signature Feb. 17, 1978, 1340 U.N.T.S. 62 (entered into force Oct. 2, 1983) [hereinafter MARPOL].
380. MARPOL requires each oil tanker of a certain size to carry an International Oil Pollution Prevention certificate-issued by the flag state or by a classification society selected by the flag state after inspection verifying required equipment was in place. This is only one of several documentation requirements under MARPOL, all of which operate in a similar fashion.
381. Ronald B. Mitchell, INTERNATIONAL OIL POLLUTION AT SEA: ENVIRONMENTAL POLICY AND TREATY COMPLIANCE 172-73 (1994). Ships of nonparties are not provided with an IOPP Certificate but are held to the same construction and inspection requirements.
382. INTERNATIONAL MARITIME ORGANIZATION, REPORT OF THE MARITIME SAFETY COMMITTEE ON ITS EIGHTY-NINTH SESSION 5 (2011), available at http://www.uscg.mil/imo/msc/docs/msc-89-add-3.pdf [hereinafter IMO, REPORT OF THE MARITIME SAFETYCOMMITTEE].
383. IMO, REPORT OF THE MARITIME SAFETY COMMITTEE, supra note 276, at 9.
384. Resolution MEPC.117(52), Amendments to the Annex of the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, Oct. 15, 2004 (entered into force Jan. 1, 2007), available at http://www5.imo.org/SharePoint/ blastDataHelper.asp/data_id%3D15720/117%2852%29.pdf; MITCHELL, supra note 276, at 172.
385. IMO, REPORT OF THE MARITIME SAFETY COMMITTEE, supra note 276, at 7-13.
386. SHAPIRO, supra note 5, at 170-76.
387. Vienna Convention on the Law of Treaties, supra note 225, art. 2 (emphasis added).