Noncompliance as law-making

Abstract

Michael Reisman once wrote that “international lawyers frequently respond to the appearance of a discrepancy between existing and emerging legal arrangements by heatedly rejecting the new with a fury of virtuous unanimity against the evil whose name is Change.” This quote is never more true than when international lawyers consider the role of lawbreaking in lawmaking. While civil disobedience has a safe — and in some countries revered — legacy as a means of prodding governments to make laws more consonant with modern notions of justice, commenters are not similarly sanguine in discussing noncompliance as a lawmaking device in international law. Lawbreaking is often viewed as antithetical to the values underlying the law of nations and a challenge to the enterprise of international law. Yet, as this Chapter explains, in certain circumstances it makes perfect sense to talk about noncompliance as lawmaking. Indeed, far from representing a challenge to international law, recognizing the juris-generative role of noncompliance reveals that some violations demonstrate a state’s commitment to international law’s collective endeavor. States sometimes violate the law in order to improve it, just as those who engage in civil disobedience do so in order to change it for the better. Descriptively, I argue that for noncompliance to be an effective lawmaking technique, it must 1) be public; 2) carry with it a credible threat to continue the violation indefinitely; 3) the normative content of the violation must be acceptable to other states as an alternative rule; and 4) the violator’s relative costs of lawmaking through noncompliance are less than they would be through conventional multilateral lawmaking channels. Normatively, allowing noncompliance to play a lawmaking role may be essential to the long-term viability of the international legal enterprise. While states cannot really exit their relationships with each other, international law lacks the constraints of the domestic system that prevent states from effectively exiting their legal obligations by persistently violating the law. Given this limitation, turning some violations into constructive acts of lawmaking may enhance the viability of the international legal system, rather than undermine it.