B. The Practice of “Naming and Shaming” as an Enforcement Strategy

“Naming and shaming” is an enforcement strategy often adopted by those seeking to promote a target state’s compliance with their international obligations.Footnote ¹² In essence, employers of the strategy express “moral criticism intended to induce a change in some state behavior without reliance on formal, legal processes.”Footnote ¹³ At the core of this practice is the knowledge that being shamed publicly for violating one’s international legal obligations can lead to significant consequences for states.Footnote ¹⁴ For example, states may, as a result of being shamed, be excluded from multilateral regimes and so the benefits membership could provide, or even targeted with sanctions.^{Footnote 15} Accordingly, those who employ “naming and shaming” as a strategy bet on the likelihood that states would rather take action and comply with their international obligations, than continue being shamed.^{Footnote 16}

Compliance, however, is certainly not the only option available. Terman, for instance, highlights how states may respond to shaming campaigns by engaging in acts of “deflection,” and/or “defiance.”Footnote ¹⁷ Thus, whilst shaming can lead to a decrease in violations in some contexts,^{Footnote 18} it may fail to induce change in others. Shaming may even contribute to an increase in human rights violations within target states,^{Footnote 19} or hybrid responses, where “the shaming of one physical integrity violation is jointly associated with decreases in that violation and increases in other violations of human rights.”^{Footnote 20} Furthermore, as Terman advances, one must acknowledge the relational nature of the practice of shaming, and how “[a]s a form of social sanctioning, shaming occurs in and through preexisting relationships, particularly the relationship between shamer and target.”Footnote ²¹ Accordingly, how a state is likely to respond will depend on the particular state and context in question. Ultimately, there is no guarantee as to how a state targeted by a shaming campaign will respond. Nevertheless, examining how states have responded in the past can provide us with valuable insights as to the range of possibilities that “naming and shaming” campaigns ought to account for.

Qatar’s responses to the shaming campaign it was subjected to, both in the lead up to and during the World Cup, certainly highlight the complex social contingencies at play when seeking to predict how a state will respond to shaming. Consider, for instance, how in a 2014 CNN Interview, H.H. Sheikh Tamim bin Hamad Al Thani, Emir and head of state of Qatar,Footnote ²² recognized that the concerns over the labor situation in Qatar were legitimate, seemingly signaling the state’s intention to comply with the demands of its shamers as a response.Footnote ²³ As the Emir seemed to concede: “Talking about labor and the problems we have in Qatar. Yes, it is true. We had problems. We are solving the problems. We are enforcing the laws. It is not acceptable . . . .”Footnote ²⁴ However, it is also significant to note that when pressed by Amanpour to confirm that Qatar would not stand idle whilst workers were placed under conditions of slave labor, the Emir responded with:

The Emir’s call here for the media to talk “about those laws”Footnote ²⁶ is a curious one. It hints at the use of legal reform as textual rhetoric in “counter-counter marketing,” as Duval advances,Footnote ²⁷ but also arguably betrays that what could be interpreted as an internalization of human right norms, granting them “prescriptive status,”Footnote ²⁸ may be more accurately described as a high-cost “tactical concession”.Footnote ²⁹ After all, the call was not for the media to come and see for themselves how Qatar would not stand idle, but to talk about the formal reformation of laws. However, it is of course possible for a state’s domestic laws to comply with their international obligations on paper but disappoint in practice. In fact, this is precisely the critique that was raised in respect to the labor reforms enacted by Qatar during a meeting of the UN Committee on Economic, Social and Cultural Rights in October 2023. In that meeting, committee expert and member of the country taskforce, Nadir Adilov, invited Qatar’s delegation to “clarify why despite the labor reforms the system of kafala sponsorship employment remains in practice.”Footnote ³⁰ In response, Qatar’s delegation highlighted several legal and institutional amendments, as well as developments of considerable relevance.Footnote ³¹ In addition, the delegation provided evidence that Qatar is acting to implement these laws, such as data from Qatar’s Ministry of Labor that shows that “the percentage of workers that were able to move from one employer to another over the past three years was 35% out of the migrant workers in Qatar….which is a two-fold increase on the previous report.”Footnote ³² However, much like the Emir’s response almost a decade prior, primary focus seems to once more have been placed on talking about the laws that were enacted, instead of responding directly to the core of Adilov’s question.Footnote ³³

Of course, Qatar’s labor reforms provide important legislative steps for protecting labor rights in the state, as well as an important, arguably final step on the road to compliance—or rule-consistent behavior.Footnote ³⁴ Yet, critics will likely continue to wonder whether Qatar may have enacted cosmetic labor reforms to silence the shaming, knowing that the global spotlight on its domestic affairs would inevitably fade when the World Cup concluded. Host states of mega sporting events (“MSE”) will not be oblivious to the fact that there will be a drastic rise in the attention paid to its domestic activities due to their hosting the MSE, but that this will wane soon after its final event. Consider, for instance, how it has been claimed that the Argentinian junta increased “daily repression in host cities both right before and right after the [1978] World Cup.”^{Footnote 35} Time, and further empirical research, may later reveal whether Qatar’s labor reforms were indeed instances of “tactical concession”. Nevertheless, in the following sections, I argue that accounting for “status” as a factor in international relations may explain why it is certainly plausible that a “small state,” like Qatar, may consider engaging in what has been interpreted here to be a particularly risky form of “tactical concession”.

C. International Legal Ordering and the Question of Status

Qatar’s Emir once claimed that the World Cup was a major occasion “for enhancing the country’s global status . . . .”Footnote ³⁶ Such claims will hardly come as a surprise to political scientists and their field, where there is considerable agreement that an international actor’s status—that is, their “standing, or rank, in a status community” Footnote ³⁷—matters in international relations.Footnote ³⁸ However, talk of “status” invites awkward memories for the international lawyer. The idea of ranking states is antithetical to the doctrinal insistence on sovereign equality in the juridical sense, and is a practice more often associated with the international legal order’s past, not its present.^{Footnote 39} For instance, the ranking of states was a practice particularly familiar to international jurists of the nineteenth century, wherein a shift from naturalism to positivism was accompanied by descriptions of international law as the law of a European “family of nations.”^{Footnote 40}

Yet, international lawyers cannot deny that the contemporary international legal order either is or operates within a status community. A topic of regular discussion both within and outside of the discipline, is how the United Nation’s ideal of sovereign equality, arguably represented in the General Assembly, is contradicted by the exclusive reservation of special powers for the five permanent members of its Security Council (UNSC). This inevitably creates a hierarchy of states within the international organization.^{Footnote 41} Adding to this, there are those who point to how the UN system reproduces the civilizing mission of old by linking the egalitarian deontological framework of the UN Charter—sovereign equality—to a particular teleological blueprint—the promotion of human rights.^{Footnote 42} Mutua, for instance, has convincingly argued that whilst the human rights corpus is certainly there to suppress the evil tendency of states against their peoples, it is nevertheless well suited to assist in the evaluation of states.^{Footnote 43} The rubric? “The ‘good’ state controls its demonic proclivities by cleansing itself with, and internalizing, human rights. The ‘evil’ state, on the other hand, expresses itself through an illiberal, anti-democratic, or other authoritarian culture.”^{Footnote 44}

Brannagan and Reiche signaled the contemporary resonance of Mutua’s argument for analyzing the shaming of Qatar. According to them:

Importantly, distancing oneself from “the club” of responsible states can mushroom into a state being outcasted by the international community.Footnote ⁴⁶ Small states, in particular, recognize that a negative public appraisal can lead to a loss of status at the international level, and that this can present risks to state security and, taken to its extreme, sovereign independence.^{Footnote 47} Qatar is no exception.Footnote ⁴⁸

Though known globally for its considerable wealth and pursuit of “soft power,”^{Footnote 49} Qatar identifies itself as a small state,Footnote ⁵⁰ fully aware of the role the international legal order plays in its security.^{Footnote 51} This was acknowledged in a recent speech by the incumbent prime minister and minister of foreign affairs, H.E. Sheikh Mohammed bin Abdulrahman Al Thani, who stated: “[i]f we will lose the protection of the rule based world order, then the biggest loser will be the small countries, not the big ones.”Footnote ⁵² A relational approach to understanding the practice of shaming must thus account for where both the shamer and target state are placed within the socially stratified international legal community; both from their own perspective, as well as that of the international community broadly speaking. From this standpoint, direct defiance of global shaming campaigns and increases in human rights violations would seem to make little sense from the perspective of a small state, like Qatar, that has a vested interest in the security which can be provided by the international legal order and its institutional mechanisms. Rather, the more measured approach of retaining favor within and protection from the international legal order, would be a public showing in the belief and desire to remain a member of the international legal community, as can be achieved by enacting domestic legislative changes that attest to one honoring their international legal obligations.

To leave it at that, however, would be to ignore how predicting state responses to shaming campaigns becomes especially problematic when a state shows signs of what Friedrich labels “status anxiety”—“when an actor feels deprived of the status it feels entitled to.”^{Footnote 53} As Terman persuasively argues, the dynamic of inclusion and exclusion within the international community becomes particularly complicated when foreign condemnation of domestic human rights compliance reveals how international human rights norms can be used as “technologies of stigma and status denial.”Footnote ⁵⁴ States are not monolithic actors, despite the international legal discipline’s tendency to anthropomorphize states as such. Leaders must account for the political support of their domestic audience and consider that “[w]hen audiences associate human rights pressure with domination, politicians cannot acquiesce to such pressure without being perceived as kowtowing to the enemy.”Footnote ⁵⁵ This applies both to the audience at home and allies abroad that may influence state decision making. Qatar’s Emir seemed to acknowledge this all too well when responding to questions surrounding the criticism Qatar received for hosting the World Cup.

Consider the choice of phrasing when the Emir stated the following: “I think that we have the right as Muslim countries and Arab countries to host such a big event like that . . . . [A]nd people don’t want to accept, don’t want to realize, that a small country, Arab, Muslim country, can host a big event like that.”^{Footnote 56} For the Emir, it was clear that there are those that view small, Arab and Muslim states as somehow less capable than their larger, non-Arab, non-Muslim peers. Reference to the international community was not made as such, but it is not entirely out of the question that the community at large was the target when the Emir referenced “people.” However, by contesting this depiction of small, Arab and Muslim states, and poignantly employing the language of rights, the Emir, I argue, provided nuance to his later comments about how the World Cup would enhance Qatar’s “global status . . . .”Footnote ⁵⁷ Specifically, I argue that by employing the language of rights, and defending the claim that states like Qatar ought not be deprived of their “equal” status as members of the international community, the Emir’s comments showed that for states, considerations of status need not only be interpreted within the framework of a zero-sum game of “status seeking” in international relations.Footnote ⁵⁸ Instead, the language of rights invites us to consider how the act of shaming itself exposes the contours of the egalitarian myth of the international legal order, and why states may decide to call its bluff.

D. An International Honor System?

Let us take stock of the argument so far. It has been argued that those who name and shame count on the possibility that their action may in some way negatively affect target states by devaluing them in the eyes of the global public. But by relying on the power of open moral criticism to influence behavioral change within a domestic state, shaming cannot but push target states, and their populations, to consider where they stand—their status—within the moral community that is called to witness its non-compliance with communal norms. That is, by being forced to adopt the position of the global audience to evaluate what potential consequences may follow from being shamed, target states are inevitably invited to assess whether they are a “good” state or a “bad” state, at the top of the social hierarchy or at the bottom. The theory I wish to raise here is that, by being invited to partake in their own status assessment, target states are confronted with a normative framework that seems to co-exist, and arguably mutually supports the international legal order, one that seems to share salient features usually found in “honor systems.”

Consider, for instance, how all honor systems, whether informally or in a written code,Footnote ⁵⁹ communicate norms for regulating the behavior of their addressees.^{Footnote 60} These norms do not need to be enacted or enforced according to the modern state conception of law.^{Footnote 61} Far from it. Honor systems can, and often do, prescribe norms that conflict with those of the legal system its members may be subject to.^{Footnote 62} What is particularly interesting for the purpose of the argument raised here, is how most honor systems are normative frameworks within which individuals and groups are ranked upon a gradating scale. The most honorable—excellence, “good”—at one end, and the least honorable—the shameful, outcast, or “bad”—at the other.^{Footnote 63} How this is regulated can differ. For instance, some honor systems offer rubrics for how members may rise and fall in the ranks, motivating status seeking and the pursuit of honorable deeds.^{Footnote 64} Others fix the rank of certain categories or individuals, differentiating the rules applicable to each, from birth.Footnote ⁶⁵

Whilst I am not suggesting that the international legal order may be reducible to an honor system tout court, it is interesting to note how several of the features that have been highlighted so far about the relationship between shaming as a human rights strategy, and states’ status in our socially stratified international legal community, do suggest the existence of such a system. Consider, for instance, a key recurring feature of honor systems—the ranking of members, and ascription of value upon those members in accordance with a normative framework—and how this seems to mirror our earlier description of an international legal hierarchy, as identifiable within the UN, and an ever-present practice of evaluating states based on their commitment to the normative content of international human rights.

Of course, one cannot claim that the international legal order reflects a dynamic honor system that sees privileges—honor—being assigned and revoked depending on how a state is assessed in accordance with a relevant normative rubric of the system—human rights compliance. That this is so is made clear should we draw our attention back to the fixed institutional structuring of the UNSC, and how it offers a powerful example of how no amount of scoring high or low on the human rights rubric can lead a state to rise or fall on the status ladder of the international legal hierarchy that holds the permanent five members of the UNSC at its pinnacle.Footnote ⁶⁶ To provide but two recent examples that speak to this, consider the continuing shaming targeted at the Russian Federation for its full-scale invasion of Ukraine in 2022, or at the United States of America for vetoing a UNSC resolution which “would have called for ‘humanitarian pauses’ to deliver lifesaving aid to millions in Gaza”Footnote ⁶⁷ amidst the ongoing Israel-Gaza crisis. A demotion in terms of status within the UN system in the form of replacing both Russia and the US as permanent members of the UNSC for behavior which, according to the humanitarian rubric of the UN institution itself, ought to be considered shameful, has not yet occurred, and remains unlikely to occur in the future. Instead, accounting for the relational dimension of the practice of shaming as a human rights enforcement strategy, what is revealed is how, much like honor systems that fix the privileged social status and privileges of certain categories of individuals from birth to the detriment of those categorized as less honorable or outcasts, the international legal order seems to perpetuate a static social ordering where no matter how well a state “behaves” in accordance with the international human rights rubric, it will be unlikely that it will benefit from an enhancement of status—within—the international legal community. Hence, states that are low in the international legal hierarchy—or as Dabhade bluntly phrases it, “rule-takers” not “rule-makers”Footnote ⁶⁸—must swallow the pill of sharing formal, juridical equality if they wish to benefit from membership in the international legal community, fearing the consequences shame and a lowering of their status may bring, whilst bearing the hypocrisy of the shameless.Footnote ⁶⁹

Taking an “honor” perspective to shaming as a human rights enforcement strategy, and returning to our case-study, a picture begins to form supporting a plausible strategy where Qatar may have sought to play both sides of the coin in order to navigate the socially stratified international legal community before which it was being shamed. Initially enacting labor reforms that would distract global criticism and temporarily avert the relational costs that may come as a consequence of being shamed. But once the spotlight moved on, revealing the insincerity of said reforms through their weak enforcement, thus signaling to its domestic public and elites that it will not kowtow to an order atop of which sit states whose behavior has historically flouted the very normative rubric for evaluating their value within the international community. Of course, this is a purely theoretical proposition. However, should the concerns surrounding the enforcement of Qatar’s labor reforms not be addressed, then shamers may wish to consider this theory’s potential for explaining why target states may be motivated to enact cosmetic legal reform, buoyed by the hypocritical normative dynamics of the international legal order that the practice of shaming itself betrays. Doing so, perhaps, may lead to developments in the practice that may seek to assuage this potentiality.