Though it is said that compliance with international law is high, the international system contains few legislative, judicial, or executive processes analogous to those of States, and, consequently, the system's ability to self-correct and self-enforce is much more limited, creating gaps between aspiration and authority, procedures and policy. This Essay contends that noncompliance - particularly operational noncompliance - is a necessary component of less capable legal systems, such as international law. Though compliance, of course, 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. That operational noncompliance is not the ideal there is no doubt. Nor is there doubt that many, if not most, instances of operational noncompliance are unlawful and undesirable. Yet, the failure to acknowledge the functions and potential benefits of some instances 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. Part I of this Essay discusses the problem. Part II sketches the various causes of noncompliance and introduces the concept of operational noncompliance. Part III explains operational noncompliance in detail and provides examples, showing that operational noncompliance is an integral component of the international legal system. Part IV looks at the costs and benefits of operational noncompliance. Part V discusses whether operational noncompliance should be acknowledged as a component of the international legal system, and, if so, how we should appraise particular acts of operational noncompliance. Part VI concludes that we need to come to terms with noncompliance.
Jacob Katz Cogan, Noncompliance and the International Rule of Law, 31 Yale J. Int'l L. 188 (2006).