Weekend Roundup: November 10 – 16, 2012

This week on Opinio Juris, we finished last week‘s symposium on the Oxford Guide to Treaties, recently edited by our own Duncan Hollis. Peter Spiro discussed Kal Raustiala’s chapter on NGOs and treaty-making, and argued that we should look beyond traditional treaties to understand the full scope of NGO participation in international lawmaking. A final set of posts discussed the increasing public nature of treaties. Geir Ulfstein argued that treaty law alone cannot answer all the important legal questions that arise as a result of treaty bodies exercising public powers, but needs input from institutional law. Catherine Brölmann’s post also discussed the combination of contractual and institutional elements in constitutive treaties. Geir and Catherine’s posts led Duncan Hollis to reflect on how treaty law can lead to “secondary fragmentation” – fragmentation in the “rules on rules”.  Christian Tams argued that this “fragmentation” indicates the limits of general treaty law which often only provides residual rules or no rules at all.

In our regular posts, Julian Ku questioned whether Argentina’s claim under the UNCLOS against the seizure of its naval training ship had any chance of success. Peter Spiro discussed the status of honorary consuls after Jill Kelley, one of the central figures in the Petraeus scandal, demanded “diplomatic protection” based on her status as Korea’s honorary consul in Tampa. Kevin Jon Heller was appalled by the assumptions of the online “Tell Me How This Ends” game, as all available strategies required a blatant violation of jus ad bellum, and Kristen Boon wrote about a panel on the Responsibility to Protect she chaired during the Canadian Council of International Law conference.

R2P was also the topic of Spencer Zifcak’s article discussed as part of the latest Melbourne Journal of International Law symposium. The article examines the current standing of coercive intervention under the R2P doctrine after Libya and Syria. In his response, Ramesh Thakur pointed to three points missing from the analysis. Thomas Weisz argued that R2P is only an emerging norm and that its enforcement will depend on a confluence of political circumstances and military capacity. Spencer Zifcak’s reply to the comments can be found here.

A second article, by Darryl Robinson, examined why command responsibility had become so complicated, and blamed one early misstep. Ilias Bantekas’ response focused on causality whereas Jens Ohlin proposed to consider command responsibility as both a separate offence and a mode of liability. Darryl Robinson responded to these comments here. James Stewart wondered whether a failure to punish subordinates could be assimilated to ex post aiding and abetting. Darryl Robinson responded here.

The final article of the MJIL Symposium, by Michelle Foster, argued why Australia’s MOU with Nauru about the processing of refugee applications is at risk of violating the Refugee Convention. Mary Crock agreed with this assessment and discussed the effects that the new arrangements have already had. Susan Kneebone examined the application of principles of state responsibility. Michelle Foster’s response can be found here.

As always, we kept you up to date with a listing of upcoming events and our daily news wrap.

Have a nice weekend!