Enforcing International Law: States, IOs, and Courts as Shaming Reference Groups

Abstract

We seek to answer the question as to whether international law imposes meaningful constraints on state behaviour. Unabated drone strikes by the dominant superpower in foreign territories, an ineffective United Nations, and persistent disregard for international law obligations, as evidenced by states killing their own citizens, all suggest that the sceptics have won the debate about whether international law is law and whether it affects state behaviour. We argue that such a conclusion would be in error because it grossly underestimates the complex ways in which IL affects state behaviour. We argue that scholars who claim that the lack of coercive power in IL is fatal to it being law err in imagining that the types of physical coercion typically used in domestic law enforcement are the only types of coercion available for the enforcement of legal rules. Incarceration is not the only type of coercion available for the enforcement of legal rules. To be sure, depriving the offender of his liberty by locking him up in jail has severe expressive, deterrent, retributive, and incapacitative effects, but that does not itself lead to the conclusion that other punishments cannot achieve the same purposes and be just as coercive. If these alternative punishments can be shown to achieve the aforementioned effects, the central argument against IL being law falls. We aim to do this by focusing on a relatively neglected kind of sanction in IL – shaming. We show that IL is enforced by states, courts, and international organizations by the imposition of shame sanctions on offenders and that these sanctions affect state behaviour in the same ways that traditional coercive sanctions do. In doing the above, we also develop the concept of a shaming reference group.