Symposium: Cogan Reply to Pauwelyn

by Jacob Katz Cogan

[Jacob Cogan is Assitant Professor of Law at the University of Cincinnati and a contributor to the Opinio Juris On-line Symposium]

My thanks to Professor Joost Pauwelyn for his thoughtful comments, to Opinio Juris for inviting me to participate in this online symposium, and to the Yale Journal of International Law for publishing my essay on Noncompliance and the International Rule of Law.

In the essay, I argue that noncompliance is a necessary component of the international legal system. In so doing, I take issue with the majority view of international lawyers, “who, well aware of the weaknesses of the international legal system and eager to bolster the international rule of law and its substantive legal prescriptions, are inclined . . . to take a reflexively hard line with noncompliant acts.” The essay’s particular focus is on “operational noncompliance,” or “noncompliance that keeps a partially effective system, such as international law, operational by reconciling formal legal prescriptions with changing community policies or by bridging the enforcement gap created by inadequate community mechanisms of control.” I acknowledge that there are other forms of noncompliance that may be beneficial, but I do not consider them at length.

Professor Pauwelyn first claims that I go “too far by underestimating the flexibilities and exit options that exist within the system of international law.” What I describe as noncompliance, he sees as “flexibilities and exit options perfectly permitted and accepted within international law.” I wish more people thought along those lines, and I wish it were that international law were more like what Professor Pauwelyn describes. Unfortunately, international law and international legal scholars appear to be trending the opposite direction, and this is precisely the lament of my essay. The law regarding countermeasures – at least if one assumes the International Law Commission’s Draft Articles on State Responsibility as a benchmark – is not flexible but restrictive. And the idea that custom might be changed by violation is now widely condemned. As Brigitte Stern wrote a few years ago, “the deficiencies of international law are no excuse for its violation.” Thus, while international law certainly has some flexibilities, I think Professor Pauwelyn overestimates them (which leads him to conclude that I underestimate them).

Professor Pauwelyn’s second claim is that I don’t “go far enough” because I “take[] it for granted that ideally ‘compliance’ should always be the goal.” Here he notes that “[d]omestic law comes in degrees (think of contracts, statutes and constitutions) and is protected and enforced at various levels (think of liability rules, property rules and inalienability; compensation, fines and imprisonment).” But even domestic law divides the world dichotomously between violation, breach, and guilt (that is, whether an act is in accordance with one’s obligations, be they public or private, and not otherwise excused) and the consequences that result therefrom. In most legal systems, compliance is the goal, and indeed that is the myth that sustains the law. What varies is how legal systems treat noncompliance. There is a difference, in other words, between the idealized goal and whether and how that goal is enforced. I see it as no vice, then, to suggest that compliance should be the norm, so long as one doesn’t assume that norms are sacrosanct, that acts that violate norms are per se illegal, or that illegal acts should always be condemned. Because the international legal system is only partially effective, we should be particularly aware of and acknowledge “the key role operational noncompliance plays in maintaining the efficiency and relevance of the international legal system.” (This doesn’t make international law any less “real law,” which contrary view Professor Pauwelyn mistakenly attributes to me.) Far from binary thinking, this approach recognizes the complex ways in which we should appraise acts, including formally illegal acts, in international law.

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