Symposium Paper 1: Non-Compliance and the International Rule of Law
In an effort to elevate the international rule of law, international law scholars, especially since the end of the Cold War, have endeavored to determine how best to induce compliance, that is, how to encourage nations to obey international law. For all its advantages, this focus on compliance obscures the role of noncompliance in the international legal system. In the absence of effective mechanisms for decision and control, States sometimes feel obliged to take actions that formally violate existing norms but may nevertheless reflect current or developing expectations of lawfulness or make existing law effective. This is “operational noncompliance” – noncompliance that keeps an imperfectly effective system, such as international law, operational. Though compliance is and should be the norm, those who discount operational noncompliance disregard the tension, which is acute in the international arena, between the necessity in a legal system of maintaining the principle that the law is to be complied with – because otherwise what does it mean to be a law? – and the role of noncompliance in developing new law and in enforcing current law. This Essay explores that tension, arguing that we should recognize that operational noncompliance is and must be a part of the international legal system, as it is currently constituted, and that, in some cases, acts of operational noncompliance are legitimate. The failure to acknowledge the functions of operational noncompliance mythologizes contemporary international law, limits our ability to achieve community policies, and risks making international law irrelevant. Unless and until we have more effective international institutions, we will need to come to terms with noncompliance’s role in the international legal system.