Jacob Katz Cogan responds to John H. Knox

[Jacob Katz Cogan, author of The Regulatory Turn in International Law, responds to comments by John H. Knox. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

I would like to thank John Knox for his very thoughtful and quite generous response to my article The Regulatory Turn in International Law. In a number of ways, the article builds on John’s own scholarship – particularly his excellent Horizontal Human Rights Law, 102 American Journal of International Law 1 (2008). So it is particularly appropriate for us to continue the discussion here today.

John’s response focuses on private duties in the context of human rights, and he argues that “[h]uman rights law has always been concerned about threats to human rights from non-state actors.” Recent developments, then, are “an intensification of a long-standing characteristic.” I don’t disagree. As John notes, and as discussed the article, “treaties requiring states [for example] to regulate individuals and corporations to suppress slavery, labor abuses, and racial and gender discrimination” predated the late 1980s, which is the date I point to as the beginning of the regulatory turn. And he is correct to conclude that “the challenge of distinguishing between duties that undermine human rights and those that promote them is not new.”

There is one small point that John raises about which I might quibble though. John acknowledges that recently “human rights law has certainly addressed private duties with much greater specificity” – a point of importance in the article. But he then writes that “the dividing line between opposition to and support of such duties is not temporal but substantive: human rights advocates have supported some duties on non-state actors and opposed others not because their world-view changed in the closing years of the twentieth century, but rather because they have consistently tried to distinguish between duties that further human rights and duties that undermine them.” Yet the very act of distinguishing between duties that further human rightins and duties that undermine them is contextual. Making such choices at any particular time depends on a wide variety of considerations, few of which are atemporal. In other words, the same substantive question may have presented itself over the years to human rights advocates, as John suggests, but the answer to that question was not constant, nor could it be – it necessarily changed over time as the conditions for decisions altered. The specification (and the intensification) of international law’s regulation of private duties that has taken place within the past two decades is not random, nor was it inevitable.

John’s response raises a number of other interesting issues, but I will focus only on two, both of which are implicit in the article but neither of which is discussed in any detail there. The first goes to the question of how to think about change over time in the context of international law, and especially the subject of periodization. The Regulatory Turn points to a fundamental change in the international legal system, beginning in the late 1980s and early 1990s and continuing until today, that concerns how international law governs non-state actors. Whereas previously international law deferred almost entirely to states, international law now takes a much more direct role in regulating private action, including in the field of human rights. All change is relative though. The article does not argue that the international system has replaced the state in its regulation of non-state actors, nor does it suggest that international law is now more important than domestic law. Rather, The Regulatory Turn describes a structural shift in the governance of private actors, a shift of some considerable consequence. From the standpoint of periodization then, The Regulatory Turn divides twentieth-century international law into three parts: pre-World War II (discussed only briefly), World War II until the mid-1980s, and the mid-1980s until the present. This is not a particularly radical division of the past hundred years, but the question remains as to how we are to know whether this is the right way to think about the history of international law – either generally or with regard to specific themes or sub-fields. The article suggests that one way (though clearly not the only way) to evaluate change is through a careful attention to the varying techniques used by relevant actors in the creation and implementation of law.

The second issue, also somewhat theoretical, pertains to the evaluation of the merits of the changes I identify in The Regulatory Turn. When I wrote the piece, I deliberately avoided drawing any normative conclusions. Indeed, as one reader commented, I hedge throughout. This is because, as I note in the last paragraph of the article, these developments are “double-edged.” Increased regulation – like all techniques of law and governance – can be used by groups on all sides of politics and it can be used for good and bad. Regulation is not necessarily left or right, nor is regulation inherently positive or negative (except to strict libertarians). The appropriateness of what I have described as the regulatory turn will depend on particular facts and circumstances, balancing a host of factors, and will vary from issue to issue. Though, like John, I think caution is appropriate, particularly in the context of direct duties on private actors, like a ratchet, the turn, having been taken, cannot be easily reversed.

My thanks again to John, to the editors of the Harvard International Law Journal, and to Opinio Juris for putting together this symposium.