II. What is outcasting?

The authors define outcasting as ‘when a group denies those who break its rules the benefits available to the rest of the group’.^{Footnote 5} The book recounts outcasting as known in the Norse tradition, including in Iceland.^{Footnote 6} But, as the authors note, the strategy of outcasting is found in the stories of Adam and Eve, and Cain and Abel.^{Footnote 7}

It is correct that parties violating a treaty may be suspended from the rights of the treaty, or their treaty rights may be terminated. But technically speaking, the Vienna Convention does not regulate countermeasures. As the authors correctly state, countermeasures are regulated in the law on state responsibility – where the International Law Commission’s (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001 is of particular importance.^{Footnote 9} This raises the question of the relationship between countermeasures and outcasting.

III. Substantive aspects of outcasting

The use of countermeasures in international law is not new, and long predates the 1928 Pact. In earlier times, countermeasures were known as ‘reprisals’ or ‘self-help’. Hence, countermeasures have hardly replaced war. What is new is that as a result of the Pact and subsequent developments the use of armed force – including war – is prohibited as a countermeasure. Furthermore, the conditions for use of countermeasures and their limits are set out in the ILC Draft. Thus, in stark contrast with the Norse tradition, where an actor subject to outcasting was literally beyond the protection of the law, the New World Order contains complex rules that both authorise and constrain the use of countermeasures.

Despite these rules, however, significant issues remain unresolved. One is the extent to which countermeasures may be taken by non-injured states. ILC Draft Article 54 contains a savings clause, whereby the proposed rules do not ‘prejudice’ the right of non-injured states to take ‘lawful measures’ against the violating state. This provision was one of the most disputed aspects of the law on countermeasures.^{Footnote 10} The Commentary to this article points out that ‘[p]ractice on this subject is limited and rather embryonic’. The lack of guidance in state practice and in the Draft Articles represent an unsatisfactory legal vagueness, and entails risks of misuse.

Perhaps more importantly, under the ILC formulation countermeasures retain their character as private justice. Thus, the decision to apply countermeasures is made by individual states, and does not require institutional authorisation. This limits their effectiveness and increases the potential for abuse.

IV. Institutional aspects of outcasting

The authors emphasise the importance of international institutions in the New World Order. They say that ‘the hallmark of the New World Order was the treaty that led President Bush to back down from his campaign promises in 2003, the GATT’.^{Footnote 11} Further: ‘The WTO is like a global Thing’,^{Footnote 12} i.e. the traditional decision-making body in the Norse tradition.

This characterisation raises the issue of the relationship between the WTO as an international organisation and its dispute settlement system – and the difference between countermeasures as private justice and as international measures.

First, is seems clear that the authors refer to the WTO Dispute Settlement System (DSS), not to the WTO as such. The DSS has been characterised as an afterthought – but, still, the ‘jewel in the crown’ of the WTO.^{Footnote 13} One particularly notable feature of this system is that the DSS not only has the power to resolve legal disputes, but also the power to control use of retaliatory measures. It seems to me that it is such internationally controlled countermeasures that we should strive for.

V. International courts and outcasting

In possessing the power to authorise – and to limit – the use of countermeasures, the WTO Dispute Settlement System is the exception rather than the rule. Other international courts and tribunals (ICs) can adopt remedies in the form of reparations, but they usually do not have the power to authorise enforcement in the form of retaliatory measures.

This means that ICs can impose new obligations in the form of reparations, rather than take away benefits by authorising outcasting. This is also the case for the European Court of Human Rights (the ECtHR) – which the authors mention.^{Footnote 14} The ECtHR has no authority of outcasting in the form of expelling member states from the Council of Europe for massive violations of human rights – or Russia for the use of force in Crimea. Such authority is vested in the political organ of the Council, i.e. the Committee of Ministers (Statute of the Council of Europe, Article 8).

VI. International organisations and outcasting

However, the threat of expelling states shows the limits of outcasting. As the authors say: ‘No method of enforcement is perfect. And outcasting is no exception.’^{Footnote 15} One difficulty with outcasting is that it is a very strong sanction, and it may be difficult to obtain sufficient political support for such a drastic measure.

Even more importantly, outcasting may mean that the possibilities of influencing the violating state may be lost. For example, if a state is expelled from the Council of Europe, it may drift further away from respect for democracy and human rights. The suspension of the Soviet Union’s voting rights in the UN General Assembly in the early 1960s has been characterised as ‘a spectacular failure’.^{Footnote 16} Therefore, even if states violate fundamental rights, the principal rule should be continued inclusion, rather than outcasting.

We have in recent decades experienced extensive international judicialisation. Nonetheless, the use of countermeasures are not under sufficient international control. What is more: we lack ICs in important issue areas. And effective remedies and the enforcement of court orders are wanting. Therefore, the problem remains: what can effectively replace the use of force by states? My response is that we need a more varied set of responses against violators – both in the form of withdrawal of benefits and by imposition of sanctions – to be controlled by international institutions, including by ICs.

VII. Threats to the international order

The authors argue, correctly, that outcasting is not without setbacks^{Footnote 17} and that the New World Order is at risk.^{Footnote 18} The threats come, inter alia, from the Islamic State (ISIS) and similar terrorist groups,^{Footnote 19} expansive use of self-defence^{Footnote 20} and unilateral humanitarian intervention.^{Footnote 21}

This understanding places much emphasis on the positive role of the USA. But today we can ask not only whether USA is turning inwards, but also whether it is currently an active threat to international law? Does the United States itself choose to be an outcast? Do the US attacks on international institutions signal that we are moving back towards the Old World Order?

Hence, an essential question is whether other states should act – and continue to act – without relying on the United States, e.g. on the UN Law of the Sea Convention, the International Criminal Court, the Paris Agreement on climate change, the Iran deal on nuclear armament, and to save the WTO Dispute Settlement System? One can also ask how states and civil society may continue to develop internationally controlled sanctions against violations of international law – possibly without the USA? How can this be done without pre-empting the possibilities for later participation by the United States?