Symposium: Discussion of Cogan’s “Non-Compliance and the International Rule of Law”
[Joost Pauwelyn is Professor of Law at Duke Law School and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at the International Economic Law and Policy Blog]
“Noncompliance is necessary to the effective functioning and the continued relevance of the international legal system”. That is Jacob Cogan’s main thesis. Applied to the United States – for whose State Department Cogan used to work – it translates as follows: “international lawyers should acknowledge … the special responsibilities of the powerful in shaping and enforcing international law and not just abiding by it”.
Cogan goes both too far and not far enough. He goes too far by underestimating the flexibilities and exit options that exist within the system of international law. Indeed, most of the examples he gives of “operational noncompliance” are not breach or noncompliance at all. Cogan’s two core reasons for “operational noncompliance” are: (i) the difficulty of adapting international law to “changing community politics”, thus “civil disobedience” or noncompliance to “update” international law must be tolerated; (ii) the absence of effective enforcement of international law by a “community mechanism of control”, thus “vigilantism” or noncompliance to give effect to international law must be tolerated, even promoted.
Yet, the fact that antiquated custom can be changed by deviating state practice (Cogan’s first example of “operational noncompliance”) and the fact that most international law is enforced by self-help or countermeasures (Cogan’s second example of “operational noncompliance”) are proof of the flexibility inherent in international law; not proof that noncompliance with international law is needed because of its rigidity or defects. Put differently, countermeasures (including, according to many, collective countermeasures) are fully legal within the system of international law; there is no need to go outside the system. Equally, the fluidity of custom, based as it is on state practice, enables and inherently permits gradual changes; there is no need to go outside the system. This may mean that international law is too flexible (custom is inherently unstable, enforcement is primitive and rules, even those on the use of force, are vague and subject to contrasting interpretations); it offers no excuse for what are genuine acts of noncompliance (Cogan himself refers to the use of force in Kosovo and may have in mind also the US invasion of Iraq).
This may be a matter of semantics: What I see as flexibilities and exit options perfectly permitted and accepted within international law, Cogan defines as “noncompliance” (mainly because his benchmark is domestic law). To that extent, Cogan is absolutely right to stress the importance of flexibility and exit options in international law. Even in the WTO, harder law is not always better law. For international law to attract participation, support and legitimacy (“voice”) it needs to provide balancing flexibilities (“exit”).
At the same time, Cogan does not go far enough. He simple takes it for granted that ideally “compliance” should always be the goal, if only international law had the enforcement tools to get there. As much as he criticizes the traditionalists’ view that “compliance is sacrosanct”, he ultimately supports their prescriptive or normative goal: “compliance, of course, is and should be the norm … otherwise what does it mean to be a law? … Nor is there doubt that many, if not most, instances of operational noncompliance are unlawful and undesirable”. But that is exactly the problem. Even domestic law does not require “compliance” (broadly defined as Cogan does) or “specific performance” of all of its rules. Domestic 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). International law should be no different. Yes, as Cogan argues, international law must give up the “myth” that “compliance is sacrosanct”, that international law must always be complied with, if not, it risks not being law. But it must give up this “myth”, not because of its weaknesses or defects, but because the same happens in any legal system, without claims being raised there that, as a result, US law, for example, is not “law”.
Put differently, the choice is not a binary one, as Cogan seems to think, between compliance and noncompliance, abiding by the law and civil disobedience or vigilantism, between “real law” and “international law”. Rather, it is a choice between varying degrees of normativity, different levels of protection and enforcement of different types of norms, of marrying flexibility and commitment within the law.
As international law matures, it must, indeed, give up the myth of “harder law is better law” and “compliance is sacrosanct” not to replace it with non-law or noncompliance, but with a calibrated system of law where some norms are, for example, best and most effectively protected by a property rule (most treaties), others by a liability rule (some economic and environmental obligations), yet others as inalienable (many human rights).