[Darryl Robinson is an Assistant Professor at Queen’s University, Faculty of Law]

This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below.

I am delighted to participate in this online symposium, this time at the receiving end. The emergence of online symposia is a commendable innovation which I am eager to support. When academic conversation is carried out through journal articles, the rhythm is glacially slow. Years pass between argument, counterargument and response. Online symposia provide a rapid cycle of appraisal, critique, response and clarification, both accelerating and deepening our understanding.

In this instance I am doubly delighted, as I literally cannot imagine a more qualified group of reviewers on this topic. Ilias Bantekas is one of the most prominent authorities on command responsibility. I relied considerably on his insightful and thoughtful works on command responsibility as well as his valuable treatise on international criminal law (ICL).  Jens Ohlin and James Stewart are both bringing the rigour of criminal law theory to ICL, and doing so in an ambitious, exciting, open-minded way that does not simply export national concepts.  I will address the comments by Professor Bantekas and Professor Ohlin here, and address James’ comments separately.

My argument — that the discourse on command responsibility has slowly tied itself into unnecessary knots — was not necessarily one that was guaranteed a warm reception in the ICL community. I am therefore triply delighted, in that both Professor Bantekas and Professor Ohlin seem largely convinced about my central points: that an early misstep in Tribunal jurisprudence led to an internal contradiction, and that later efforts to deny or, subsequently, to solve the contradiction, have led to increasingly elusive or complex assertions about the nature of command responsibility (eg, it’s a mode of liability, a separate offence, it’s both, it’s neither, etc).

In my article, my prescription is that by reversing the first misstep and accepting a causal contribution requirement, we can reconcile the law with the culpability principle. The existing general category of accessory liability accurately conveys the commander’s responsibility, and we don’t need to invent obscure, vague, hybrid or variegated descriptions of the nature of command responsibility. Professor Ohlin and Professor Bantekas both move to the next question, which is a normative assessment from a legislator’s perspective – what we might do with a blank canvass.

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[James Stewart is an Assistant Professor at the University of British Columbia, Faculty of Law. He is currently undertaking a Global Hauser Fellowship at New York University School of Law.]

This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below.

It is a pleasure to be invited to comment on Professor Darryl Robinson’s excellent new article How Command Responsibility Got So Complicated. His meticulous research has, once again, advanced our understanding considerably. Indeed, this particular article is but the most recent manifestation of Professor Robinson’s groundbreaking commitment to marrying criminal theory and international criminal doctrine in ways that shed new light on dilemmas that have plagued scholars and practitioners for too long. In this piece, he focuses on the much-disputed physical contribution of the failure to punish limb of superior responsibility. Some say that a superior can be convicted of genocide, for example, for failing to punish acts of her subordinates who perpetrated the crime, but Professor Robinson joins others who protest that this violates the principle of culpability. How can you be held responsible for a crime to which you did not contribute? Conversely, those who argue that failures to punish can be re-imagined as a separate conduct-type crime stripped of consequences to overcome the participation problem ignore that international law does not support that reading. Instead, Professor Robinson concludes that subsuming superior responsibility within everyday notions of accessorial liability offers a more elegant solution.

I feel compelled to start my review of the piece with a confession of sorts. In my former incarnation as an Appeals Counsel at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), I had a hand in formulating the Prosecution’s position on superior responsibility in a range of the cases that are key to Professor Robinson’s argument (Hadžihasanović, Orić, and Halilović). In part, I admit this in order to disclose a potential impurity in my views on the topic (although, for balance, my own views were different from the position ultimately adopted by the Prosecution in these cases, contrary to the conclusion ultimately reached by the Appeals Chamber that ruled on them, and I may have changed them again since reading Professor Robinson’s provocative article). For present purposes, though, this experience is also germane since it leads me to think that Professor Robinson might be too quick in arguing that the ICTY has not wrestled with these issues; to the contrary, all sides were engaged in a frenzied review of much of the literature Professor Robinson cites in an attempt to deal with precisely these problems, although no one came close to addressing the topic with anything approaching the sophistication Professor Robinson now offers. Sometimes an absence of judicial reasoning just conceals issues too complex to articulate.

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[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below.

Professor Darryl Robinson is to be commended for untangling what has to be one of the most tangled webs in international criminal law theory. The settled jurisprudence on command responsibility is anything but settled; it is contradictory, confusing, and full of conclusory statements and pronouncements that don’t hold water.

With Professor Robinson, I’ve viewed with suspicion the recent trend toward arguing that command responsibility is a form of omission liability, or even a separate offence. Regardless of whether one goes the full route and declare it a separate offence, this basic idea is the same: that command responsibility represents a conviction for dereliction of duty, for failing to live up to the demands of the law on the part of the commander, such as punishing subordinates. Under this argument, command responsibility is not a form of vicarious liability for the actions of subordinates who commit atrocities.

Like Professor Robinson, I have always found this view difficult to square with both the history and contemporary practice of command responsibility. In particular, Re Yamashita certainly reads like a case of vicarious responsibility, in that the military commission charged him with the full force of the atrocities — and executed him for it. If it was just an omission offence, then it is hard to square that with both the rhetoric and result in re Yamashita.

At this point in the analysis, though, I might have some small disagreements with Professor Robinson.

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[Ilias Bantekas is Professor of Law at Brunel University in London.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Causality is central in the operation of criminal attribution in all legal systems. It makes sense of course that liability for particular conduct exists where it is proven that it caused the harmful outcome which constitutes the actus reus of an offence. Causation is the fundamental link between conduct and outcome and is as a result the basis of liability. One would have thought that since the doctrine of causation emerged from domestic criminal justice systems, its transplantation to the various forms of liability under international law would have followed this rationale. Instead, as Professor Robinson aptly points out, it has been disregarded as irreconcilable with certain contours of the command responsibility doctrine. It is thus claimed by those opposed to its application that a commander who fails to punish his subordinates incurs command responsibility not because his failure to repress caused the commission of crimes by his subordinates. Rather, a commander’s pre-existing duty to punish suffices to hold him criminally liable irrespective of any direct or even indirect harm caused as a result of his inaction.

I have to admit that although I did give the matter some consideration in chapter 4 of my international criminal law textbook, I failed to give it the attention it desperately required. Logic dictates that a commander who fails to punish subordinates that committed a serious crime can only incur liability under two distinct strands: a) for his omission as such; and b) for subsequent harm directly caused by his omission. The first strand does not constitute a crime under international law nor an independent form of international criminal liability. It is no doubt a dereliction of duty under national military law and may conceivably be upheld as an aggravating circumstance in respect of another international crime. The second strand in my opinion is the one found in all those provisions dealing with command responsibility, from art 7(3) of the ICTY Statute to art 28 of the ICC Statute. If causality is not required for failing to punish subordinate criminality, then what exactly is the offence for which the commander is liable? It is inconceivable that the doctrine of command responsibility emerged one evening wholly disassociated from the criminal law theory of the civil law and common law traditions, both of which require causality for the attribution of liability. This does not mean that a commander who fails to punish is absolved from all liability. We have already stated that he may incur liability for dereliction of duty under national law. Moreover, his international liability may be engaged if as a result of his failure his subordinates are encouraged to commit further crimes and in fact do so. Finally, the international community may, if it views this to be a significant issue, discuss the possibility of establishing a new failure to punish offence under international law that does not require a causal link to further crimes. This, however, will open up a plethora of issues that no one is keen to touch, including a reappraisal of the foundations of command responsibility itself.

[Darryl Robinson is an Assistant Professor at Queen’s University, Faculty of Law]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Much has been written about command responsibility. In my article, I argue that views on the nature of command responsibility have become unnecessarily obscure and convoluted, and that the problem flows from an early misstep in the jurisprudence. If we revisit the first misstep, a simple and elegant solution is available.

Famously, early Tribunal jurisprudence concluded that the ‘failure to punish’ branch of command responsibility is irreconcilable with a contribution requirement. It therefore rejected any requirement that the commander’s dereliction contributed to core crimes. This however generated a contradiction, because Tribunal jurisprudence (1) recognizes the culpability principle, whereby causal contribution is necessary to share in liability for a crime and yet (2) uses command responsibility to convict commanders of core crimes without causal contribution.

Subsequent efforts to deny the resulting contradiction, and later efforts to avoid the contradiction, have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as responsibility for-the-acts-but-not-for-the-acts, as a ‘sui generis’ hybrid whose nature has not been explained, as neither-mode-nor-offence, or as sometimes-mode-sometimes-offence. Many such descriptions are elusively vague, and necessarily so, because clarity would reveal the contradiction.

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[Spencer Zifcak is Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.]

This post is part of the MJIL vol13(1) Symposium. Other posts in this series can be found in the related posts below.

I begin this response by acknowledging the two commentators. Ramesh Thakur and Tom Weiss are, together with Gareth Evans, the pre-eminent writers in the field — as well as each having played formative role in the creation of the Responsibility to Protect (‘R2P’) doctrine in the first place. So, it is a privilege that both have chosen to write a commentary on my article and it is my pleasure now to respond.

Plainly, Professor Thakur and I agree on his four summative points, so there is no need for me to comment further on them. He does, however, point to three matters he believes I have missed, so, let me say something about each.

Professor Thakur observes that, in the Syrian case, a perverse incentive exists for the Syrian rebels to respond brutally to governmental repression in order to internationalise the conflict and thereby encourage external intervention on their side. I had neither seen any prior commentary to this effect nor had this occurred to me. So, I’m grateful for the observation.

My only reservation about it is that it does seem to me difficult to make any valid, general comment about how the rebels are thinking, and why they are acting in the way that they are, because the rebel cause is so divided. As Hussein Agha and Robert Malley note in a recent article in the New York Review of Books, the opposition is an eclectic assortment of ‘Muslim Brothers, Salafis, peaceful protesters, armed militants, Kurds, soldiers who have defected, tribal elements and foreign fighters’. And then there is Al-Qaeda. So, I accept completely that some parts of the rebel leadership will be angling for external intervention but I’m not at this stage sure which ones and how representative they are. Further, if brutality and crimes against humanity are part of a rebel strategy, it does seem to be counter-productive. It is clear that international support for the rebel cause has waned in direct proportion to the increasing number of reports emerging from Syria of rebel atrocities. And so has support within Syria itself. If a vote were taken of Syrians now, it is by no means clear that the rebels would prevail over the regime.

Professor Thakur then refers to the existence of the Sunni-Shi’a split in the country and in the region. I don’t think I missed this one but may not have made it as explicit as it should be. The tragedy within Syria is that initial calls for democratic reform have morphed into a fully-fledged civil war on Sunni-Shi’a lines. And Professor Thakur is right to point to the fact that the Sunni-Shi’a battle has profound regional implications as well. Again, tragically, the civil war has drawn influential regional actors into the fray, so much so that the Syrian conflict already appears, at one level, to be a proxy war between Iran/Iraq on one side, and the Saudis, Qataris and allies, on the other. This is one critical factor that militates against any form of external intervention, as any intervention will alienate significant regional powers with unpredictable and inevitably adverse consequences both ways.

Professor Thakur points to my failure to discuss the Brazilian ‘Responsibility while Protecting’ (‘RWP’) proposal. He is right. I didn’t. I footnoted it and that is all. There were two reasons for this. First, I’ve read it many times and have not found it particularly helpful. In my view, it is not much more than a statement of the obvious, in the wake of the mistakes made by the international community in the Libyan case. Secondly, one of my major objectives in the article was to encapsulate the standing of R2P following Libya and Syria. I did that in a series of propositions at the end of each section. These propositions in part resemble those in the Brazilian document but are more specific, detailed and, I hope, more helpful. So, I didn’t want to muddy these waters by setting out to compare and contrast the two encapsulations. And since one was my own, obviously I chose to give it most prominence. Professor Thakur is right, however, to point out that the Brazilian concept note has provoked some new thinking. So, I will take that as an encouragement to explore the discussion while maintaining my reservations about the Brazilian note itself.

Professor Thakur points to two key elements in the RWP proposal that he believes are significant. The Security Council should ensure that it sets in place a monitoring and review mechanism when any intervention is commenced so as to ensure compliance with the Council’s resolutions. It should also formulate an agreed set of criteria on the basis of which to debate and mobilise consensus upon an R2P military intervention.

The second one is interesting. Gareth Evans has been a tireless advocate of the Security Council’s adoption of such prudential criteria and I am in wholehearted agreement with him on this. I note that Professor Thakur too, has joined Evans in a recent letter in which both support the deployment of the prudential criteria developed in the International Commission on Intervention and State Sovereignty (‘ICISS’) report, the High-Level Panel report and Kofi Annan’s In Larger Freedom. It was in this context that I wrote the sentence that appears to have surprised Professor Weiss. In the article, I wrote that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’. This was a reference to my earlier discussion about the desirability of adopting prudential criteria. There is substantial opposition, not least amongst the P-5 to the Security Council’s adoption of the criteria, but one can always hope.

I note Professor Weiss’s comment that applying universal principles may have a detrimental effect. I’m not sure whether he was referring here to Evans-Thakur prudential criteria or something else. But if it was in relation to the criteria, I think his criticism is misconceived. It is precisely to avoid the prospect of double-standards that I support the criteria’s application. The South would have far more confidence that they would not be subject to neo-imperial meddling if they could be assured that the relevant criteria including necessity, proportionality and balance of consequences were consistently and openly discussed and applied when decisions as to intervention were being made.

He may be right on another point, however. Yes, it’s true, lawyers love criteria. We think they’re really useful as a means of structuring constructive deliberation and decision-making. But political scientists? Perhaps we are as different as Weiss surmises.

On another matter, Professor Weiss is clearly right. Humanitarian impulse rather than humanitarian imperative is the better descriptor. I will use it. But his last sentence rather puzzles me.

On what basis can it properly be said that if Assad leaves Syria, his exit will have in part been attributable to the R2P norm? Apart from the occasional and cursory reference to R2P in Security Council resolutions decrying the regime’s failure to protect its people from atrocity, for reasons I’ve outlined in some considerable detail, the Syrian case is passing R2P by. Neither the regime, nor its rebel opponents, nor the major regional and international players, seem to be concerned with it at all. Each pursues its agenda with absolute ruthlessness.

R2P is a noble doctrine. For the time being, however, it will have to play on a different and less contested field.

[Thomas G Weiss is a Presidential Professor of Political Science at The CUNY Graduate Center and Director of the Ralph Bunche Institute for International Studies]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Professor Spencer Zifcak’s article on the international reactions to Libya and Syria is thorough and thoughtful, and well worth reading for the treasure trove of documentation. But I was frankly surprised by his unsurprising conclusion that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’.

How else?  Obviously, political scientists and lawyers have quite different expectations.

Undoubtedly the loss of life and suffering is much higher in Syria than in Libya, and it has gotten worse in the time taken to get Professor Zifcak’s article into print. The death toll has risen fivefold — now approaching 25 000 — and the joint UN-Arab League envoy Kofi Annan has resigned from his ‘mission impossible’, an assignment that trouble-shooter Lakhdar Brahimi has assumed.

The paralysis amidst atrocities and killings in Syria suggests, in case there was any doubt, that robust action in one crisis does not necessarily foreshadow similar efforts elsewhere. Inconsistency is not only the hobgoblin of little minds but also the proverbial bottom line for political decision-making. Rhetoric is one thing, tough decisions are another. Talk is cheap, action is not.

Indeed, to expect anything else is to play into the hands of the usual spoilers in the global South — the Nicaraguas and Cubas, the Zimbabwes and Sudans — who point to the double standard of the Responsibility to Protect (‘R2P’) as neo-imperial meddling.  They, of course, would prefer the old single standard for mass atrocities and do nothing because state sovereignty is sacrosanct and includes the license for mass murder. The best should never be the enemy of the good — for R2P or anything else.

In describing the present global governance of mass atrocities, humanitarian ‘impulse’ is more accurate than humanitarian ‘imperative’. The latter entails an obligation to treat victims similarly and react to all crises consistently — in effect, to deny the relevance of politics, which consists of drawing lines and weighing options and available resources. Yet humanitarian action remains desirable not obligatory. The humanitarian impulse is permissive; the humanitarian imperative is peremptory. Similarly, R2P is not a peremptory obligation but a desirable and emerging norm whose consolidation can result in occasional enforcement when the politics are right.

Politics and military capacity ultimately determine whether, when, where and why to protect and assist war-affected populations. However shocking to the conscience a particular emergency and however hard or soft the applicable public international law, when political will and a military capacity exist, humanitarian space will open and war victims will be assisted and protected. In Libya the moral, legal, political, and military dimensions dovetailed under the R2P rubric. Rather than speaking truth to power, the value-added of R2P was speaking truth with power. And if Assad leaves Syria, it will in part be attributed to the evolving power of the R2P norm.

[Ramesh Thakur is Director of the Centre for Nuclear Non-proliferation and Disarmament (CNND) in the Crawford School, Australian National University and Adjunct Professor in the Institute of Ethics, Governance and Law at Griffith University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Professor Spencer Zifcak has written an insightful article on a topic that is important, timely and will not go away. His analysis and conclusions are judicious, circumspect, balanced and, in consequence, stand the test of time since the article was written. I would like to make four points in summary and add three items to his analysis.

First, the use of force, no matter how benevolent, enlightened and impartial in intent, has empirical consequences and shapes the struggle for power and helps to determine the outcome of that political contest. This is why it is inherently controversial and contentious.

Secondly, the Responsibility to Protect (‘R2P’) is the normative instrument of choice for converting a shocked international conscience into decisive collective action — for channelling selective moral indignation into collective policy remedies — to prevent and stop atrocities. In the vacuum of responsibility for the safety of the marginalised, stigmatised and dehumanised out-group subject to mass atrocities, R2P provides an entry point for the international community to step in and take up the moral and military slack. Its moral essence is the acceptance of a duty of care by all those who live in zones of safety towards those trapped in zones of danger. It strikes a balance between unilateral interference and institutionalised indifference. But the precise point along the continuum is not easily ascertained in the fog of armed violence amidst chaos and volatility.

Thirdly, R2P was the discourse of choice in debating how best to respond to the Libya crisis. But the R2P consensus underpinning Resolution 1973 in 2011 was damaged by gaps in expectation, communication and accountability between those who mandated the operation and those who executed it. For NATO, the military operations, once begun, quickly showed up a critical gap between a no-fly zone and an effective civilian protection mandate. But back in New York, there was an unbridgeable gap between effective civilian protection, which Brazil, Russia, India, China and South Africa (‘BRICS’) supported, and regime change, which they strongly opposed.

One important result of the gaps was a split in the international response to the worsening crisis in Syria. Both China and Russia, still smarting from the over-interpretation of Resolution 1973, have been defiantly opposed to any resolution that could set in train a sequence of events leading to a 1973-type authorisation for outside military operations in Syria.

Fourthly, the Libya controversy over the implementation of R2P notwithstanding, by 2012 there was no substantial opposition to R2P as a principle or norm — an international standard of conduct.

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[Spencer Zifcak is Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

My article on this subject attempts to encapsulate the standing of coercive (Pillar 3) intervention within the framework of the Responsibility to Protect (‘R2P’) following the application of the doctrine in Libya and paralysis with respect to it in Syria. In 2011, the international community was confronted with the prospect that large-scale civilian casualties may occur as a consequence of fighting between government and rebel forces in Libya. The UN Security Council, therefore, was confronted with the dilemma of whether to authorize an intervention to avert what seemed likely to be a humanitarian catastrophe. In this case, the UN Security Council sanctioned an intervention by NATO forces in accordance with the new doctrine. Soon after, the Syrian rebellion took hold and civilians began to be killed and injured in their thousands. In that case, however, the Security Council has been stymied as neither sanctions nor military intervention can be agreed upon. In the article, the Libyan and Syrian cases are analysed with a view to determining why the international community’s response to the two conflicts has been so different and what these differences tell us about the current status and practice of the R2P doctrine. To that end, the article concludes with a series of propositions which summarize my answer to the latter question.

I have recently updated the article to take into consideration the tragic developments in Syria between February, at the time the article was completed, and October this year. In the light of that revision, the propositions contained in the original have been slightly amended. For the purpose of this interchange, therefore, I provide the most recent set as follows:

• Prior to approving a coercive Pillar 3 intervention, in the interests of national sovereignty and independence, the Security Council will need to be satisfied that every possible diplomatic solution to a crisis has been exhausted. Pillar 3 intervention will occur only as the last resort.

• Prior to approving a coercive Pillar 3 intervention, the Security Council is likely in future to insist that its objectives be made clear and that its mandate be spelt out with precision.

• It is highly unlikely that the Security Council will approve a Pillar 3 intervention if its explicit or implicit objective is regime change.

• Given that a Security Council mandate for a Pillar 3 intervention is likely to have as its principal objective the protection of civilians, it is probable that the Security Council will require that the position of an intervening force be one of strict neutrality as between the contending parties.

• Before approving a Pillar 3 intervention, the Security Council will need to be clearly satisfied first, that the intervention is likely to achieve its protective objective within the country concerned and, secondly, that it will not result in any wider regional destabilization.

• A Pillar 3 intervention should, in all aspects, conform to the dictates of international law and in particular international humanitarian law.

• Where a contemplated coercive intervention runs contrary to the core political or strategic interests of a member of the P-5, it highly unlikely to proceed. This is unless the crimes against humanity committed are so extensive and so grave that no reasoned member could resist the demand the crimes be fought. Even so, the failure of Russia and China to endorse even a very weak Security Council resolution against Syria in the face of clear evidence of the commission of mass atrocities has dispiritingly cast doubt even on that seemingly obvious proposition.

• However inadequate, engagement in Pillar 3 intervention that excludes action pursuant to Chapter VII of the UN Charter may still be preferable to provoking Security Council gridlock. This is because, as in Syria, the outcome of gridlock may be seen by antagonists to a conflict as an international licence for the commission of further crime.

• Alternatively, in response to mass atrocities, coalitions of the willing may decide to take action outside the legal framework of the UN Charter. Should this become common, R2P may wither to the great detriment of the international rule of law.

The full article may be accessed here.

The Melbourne Journal of International Law is delighted to continue our partnership with Opinio Juris. This week will feature three articles from Issue 13(1) of the Journal. The full issue is available for download here.

Today, our discussion commences with Spencer Zifcak’s article ‘The Responsibility to Protect after Libya and Syria’. Professor Zifcak draws on the disparate responses to the humanitarian disasters of Libya and Syria to examine the current status of the Responsibility to Protect. The respondents to this piece will be Ramesh Thakur and Thomas Weiss.

On Thursday, we continue with Darryl Robinson’s article ‘How Command Responsibility Got So Complicated’. Professor Robinson identifies an initial error in the development of command responsibility jurisprudence — namely, the contradiction generated between the ‘failure to punish’ strand of command responsibility, and its requirement that a defendant causally contribute to a crime — that has lead to confusion about the scope of the doctrine. Ilias Bantekas, Jens David Ohlin and James Stewart will respond to these remarks.

On Friday, our symposium will conclude with Michelle Foster’s contribution, which builds on her article ‘The Implications of the Failed “Malaysia Solution”: The Australian High Court and Refugee Responsibility Sharing at International Law’. The decision of the High Court in M70/2011 v Minister for Immigration and Citizenship invalidated the Australian Government’s attempts to implement a regional agreement with Malaysia for the processing of refugees on the grounds that such arrangements violated legislative requirements that reflected protections under the Convention relating to the Status of Refugees (‘Refugee Convention’). In light of this, Professor Foster’s contribution analyses recent Australian Government amendments to such legislative protections and addresses whether these amendments are consistent with the Refugee Convention. Mary Crock and Susan Kneebone will respond.

We hope that you enjoy participating in the upcoming discussion. We once again thank Kevin Jon Heller and the team at Opinio Juris for the opportunity to host this symposium. For further information about the Journal, the editors may be contacted at law-mjil [at] unimelb.edu.au

Martin Clark, Nuwan Dias and Eamonn Kelly

2012 Editors

Sanishya Fernando

2012 Commentaries Editor

First of all, I need to say thank you to all the contributors to the current symposium on my book, The Oxford Guide to Treaties.  It’s quite common in academic circles to have symposia on “affairs of the day” (and, to be clear, those affairs often trigger very important issues like targeted killing, cyberwar, climate change, the EU fiscal crisis, etc.).  But, I think it’s equally important to step back from time to time and have conversations about the international legal system itself, of which treaty law and practice now forms a large part.  Thus, I’ve greatly appreciated the discussions over the last several days on whether reservations can be severed, the rule(s) of treaty interpretation, the increasing “publicness” of treaty functions, and the role of non-State actors in modern treaty-making.

In reading these posts, moreover, I was struck by how some of them suggest (albeit implicitly) a new way to think about the fragmentation of international law.  To date, we have tended to think about fragmentation in one of two ways.  First, we have the question of “normative” fragmentation, where two rules produced by different legal regimes conflict or compete with each other, meaning that a State has to choose to which rule to give priority.  We normally talk about this as the “trade and . . .” problem where WTO rules have been said to conflict with rules of international environmental law, international labour law, etc.  But, normative fragmentation is not limited to the trade context as witnessed by the question of what to do when UN Security Council resolutions on international peace and security conflict with EU Law in the Kadi case.  Second, fragmentation may also arise where the conflict is not between the rules but who applies them; that is, competition or conflict over which tribunal or court should be authorized to have the final say on which rules apply or what a particular rule means in a given situation.  The MoX case is a paradigmatic example of this inter-tribunal competition, with three different proceedings under three different normative regimes: an arbitral tribunal pursuant to the 1982 U.N. Convention on the Law of the Sea, dispute settlement under the Convention on the Protection of the Marine Environment of the North-East Atlantic, and proceedings before the European Court of Justice pursuant to the European Community and EURATOM treaties.

As I think about the law of treaties, however, I see the potential for a third type of fragmentation within international law, or what I’ll call “secondary” fragmentation.  My basic idea is that fragmentation is not limited to competition and conflict among primary rules, but can also occur with secondary rules.  Here, I’m employing H.L.A. Hart’s famous division of rules into primary and secondary categories.  Primary rules are rules of conduct — telling States and other subjects of international law what they are obligated to do (or not do).  Secondary rules, in contrast, are “rules on rules”, or rules that tell us how to form, interpret, amend, or extinguish primary rules.  When we talk about normative fragmentation, however, almost all the existing discussion has emphasized conflicts and competition among primary rules, e.g., should a WTO rule trump or defer to an international environmental rule?

In looking at the various posts on interpretation and Geir Ulfstein’s post on treaty functions, however, it seems there’s some evidence of a different kind of fragmentation emerging among the secondary rules of international law.  For example, Geir suggests at the end of his post that “Treaty law must be complemented by international institutional law”.  But treaty law and international institutional law are not required by any rule of international law to get along — it’s equally possible that the result produced by the law of treaties (say an interpretation of a treaty constituting an International Organization under VCLT Article 31) and international institutional law (say an interpretation of the same treaty employing the implied powers doctrine) could generate competing or conflicting results with respect to the same primary rule.  Catherine’s post makes this point more descriptively, noting how international institutional law has come to supplant the general law of treaties in the IO treaty context.  As with fragmentation among tribunals or primary rules, however, international law doesn’t tell us if this is the correct result.  Examples of secondary rules that are conciliatory to other secondary rules are relatively rare — although the VCLT does include a few examples with respect to IO treaties in Articles 5 and 20(3).  But, on the whole, the international legal order says little, if anything about whether one set of secondary rules should be accorded priority over another.

Moreover, I don’t think this competition over interpretative rules is an isolated case.  Although The Oxford Guide to Treaties does not explicitly flag this idea of secondary fragmentation specifically, there is evidence of it in several other chapters.  For example, although the VCLT’s rules on material breach purport to function differently than the law of state responsibility, Bruno Simma and Christian Tams’ chapter on remedies for treaty breach makes clear that these two sets of “secondary” rules are in competition with one another (and, moreover, that the law of state responsibility on countermeasures may be winning in the sense that it is those rules not the VCLT provisions on which States currently rely).  Malgosia Fitzmaurice’s chapter makes a similar point about tensions over exceptional circumstances where the law of treaties has doctrines — impossibility, and rebus sic stantibus – that may be threatened by the law of state responsibility’s doctrine of necessity.

Attentive readers will note our calendar had indicated that we were supposed to start a new symposium today on The Oxford Guide to Treaties.  It appears, however, that we are not immune from hurricane Sandy’s effects.  I’ve received several requests for postponement from participants given this week’s events and I’m also told that much of New York City and other areas in the mid-Atlantic remain off-line and thus would not be able to read along or participate. Thus, after talking it over with a few of my co-bloggers, we’re postponing the symposium for 1 week. So, instead of tomorrow, we’ll start next Thursday (Nov. 8) and run the symposium thru the following Monday (Nov. 12).  So tune in next Thursday when we’ll begin a conversation on various questions of treaty law and practice, including (a) reservations; (b) dynamic and evolutionary treaty interpretation; (c) the new functions treaties perform; and (d) the role of new actors in the treaty-making process.