Post by Sadie Blanchard, Research Fellow Yale Law School
Last week, Yale Law School’s Seminar in Private Law considered non-hierarchical enforcement. Oona Hathaway and Scott Shapiro discussed their work on outcasting as a method of law enforcement, and Leif Wenar discussed his new book Blood Oil: Tyrants, Violence, and the Rules that Run the World.
Hathaway and Shapiro describe outcasting as a type of law enforcement that does not rely on physical coercion by official actors within a legal regime. Instead, outcasting relies on “denying the disobedient the benefits of social cooperation and membership.” They find outcasting in orders that are clearly legal orders, such as classic canon law, medieval Icelandic law, and contemporary United States public law. It therefore follows that international law’s heavy reliance on outcasting for enforcement does not render it “not law.”
Wenar argues that the failure of the international community to reject the norm of “might makes right” in the market for natural resources causes grave human suffering. The world, he argues, has rejected “might makes right” in nearly every other domain, but, in contradiction of its expressed and largely lived values, continues to act as though any government that by any means acquires physical control of natural resources has good title to those resources and can therefore sell them in global markets. Wenar argues that natural resources controlled by governments that fail to meet threshold democratic requirements are, in actuality, stolen from the people of the nation from which the resources were extracted. He calls for an activation of the norm of popular resource sovereignty that is already formally recognized by most nations. He asks U.S. citizens to pressure their government to treat oil offered for sale by petro-dictatorships as stolen property that cannot lawfully be imported into U.S. territory. Wenar’s argument adds, he said, to the outcasting framework the idea of citizens enforcing human rights norms (through grassroots movements, it seems, that compel governments to act).
A number of questions were raised about the feasibility of implementing Wenar’s proposal. First, states disagree about the meaning of popular resource sovereignty. Principles are poor mechanisms for regulating international trade because of these divergent views. When the stakes of determining the matter are raised, competing metrics are likely to be created, making coordination difficult. For a norm to be activated, it must fit with an institution that can coordinate around it. Because of the content of the norm “might makes right,” little coordination is needed to activate it. In domestic private law, the question of the circumstances under which a purchaser for value from a converter gets title is one of the most difficult of all legal questions. It is unstable under more fully elaborated domestic legal regimes; why should we expect it to be stabilized in the international realm? Second, if only the United States acted, it would not be very effective; other states would have to be persuaded not only to accept the same criteria to determine popular resource sovereignty but also to bear significant costs.
Wenar responded by recalling dramatic changes that have been made in international law in the past: the end of colonialism and of the slave trade. He also observed the national interest of the United States in ending the market in blood oil. Oil is the largest source of unaccountable power in the world, increases world instability, and creates costs for oil-importing states. Our tools to check the power of blood oil—alliance with oil-empowered authoritarians, foreign aid to their countries, military force, and sanctions—are clumsy and ineffective. The oil majors have learned that governance and public opinion are important to their business. Wenar reports the opinion of one oil executive that the United States could switch away from authoritarian oil nearly costlessly in a matter of months.
More questions were raised about the feasibility of the blood oil project, including whether it would cause fragmentation of the world oil trade and how the exhaustibility of outcasting—that is, that it can only be used so much before it becomes ineffective—affects how cautious we should be in using it. A student asked about Wenar’s proposal to establish a Clean Hands Trust that would place tariffs on imports produced using blood oil and hold the proceeds in a trust for the people of the country of extraction of the oil until it could be distributed to them. There would seem to be insurmountable legal and political hurdles to this proposal: what government could honestly administer such a trust and to ensure that the money is distributed back to the people to whom it belongs? The failures of the Kimberley Process on Conflict Diamonds—a regulatory regime that Wenar offers as an example of success in global governance of natural resources on which his movement could be modeled—were pointed out. How can Wenar’s movement avoid being similarly coopted by corrupt states and their corporate partners?
Questions were also raised about the fairness of outcasting. Some states are too big to outcast. We see this in the operation of the World Trade Organization. When small states win trade disputes against large states, they are permitted to impose trade sanctions on the large states, but the sanctions can be insignificant to the latter while imposing massive costs on the former. Can this really be said to be enforcement when in such cases it cannot be effective? Oona Hathaway agreed that this situation is unfair and acknowledged that outcasting does not change geopolitical realities. She suggested that small states can increase their power by banding together. For example, the European Union is considering filing claims against illegal U.S. steel tariffs.
In its next public session, the Seminar will consider consumer dispute resolution inside corporations. Colin Rule, who designed eBay’s and PayPal’s online dispute resolution platforms, will speak together with Tom Tyler of Yale Law School.