[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva, Switzerland.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you to Opinio Juris and the Virginia Journal of International Law for inviting me to participate.

This Article, by Greg Shaffer and Joel Trachtman, makes the important point that choices in treaty drafting and judicial interpretation allocate authority. For example, a choice for rules (instead of standards) or reference to non-WTO norms and expert advice (instead of WTO law only) allocates authority, respectively, to negotiators (instead of the judiciary) and to other bodies or experts (instead of the WTO). This is clear and convincing. From there, however, the authors make an extra and less convincing step: after (descriptively) linking choice to authority they then (normatively) link type of authority to welfare and participation levels arguing, for example, that treaty drafters (setting rules) can be presumed to “maximize welfare” and offer more “transparency, accountability, and legitimacy” than the judiciary (applying standards) (p. 111). A similar hierarchy is presumed putting the WTO above standard-setting bodies such as Codex or the ISO, on the view that the latter “evade the need for consensus within the WTO” (p. 113) and are “subject to capture by certain interests” (p. 114).

I find it extremely difficult to make such generalizations about which type of authority is “better” in welfare and participation terms (Instead of gauging the consequences of interpretative choices it may be more productive to think about the underlying reasons for such choices, as I tried to do here with my co-author Manfred Elsig).

Today’s reality is that authority flows from an increasing diversity of sources (national & international; public & private; political, judicial & expertise etc.). Unless one makes the broadest of assumptions (e.g., “if we ignore strategic problems and asymmetric allocation of power”, at p. 111; elsewhere, equating all of WTO law to trade liberalization and on that basis implying that the WTO is more “efficient”, p. 132), it no longer makes sense to presume that one source is, by definition, “better” than another (e.g. that negotiators or the WTO do a “better job” than judges, experts or other institutions). It all depends on the task at hand (for some things politicians are better; for others, judges, experts or the market) and the detailed set up of the authority in question (how does it operate; who is included; what is its reputation and support?), rather than its type. Nor do we have to make a binary choice between this or that authority: the WTO can refer to outside standards yet at the same time exercise judicial control over those standards (as the recent Panel on US – Tuna Label did, checking the inclusiveness and transparency of the standard); it can refer to scientific or economic experts for factual matters, defer to national authorities for appropriate levels of protection but leave decisions on legal criteria in the hands of WTO panels.
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[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).