Secondary Rules Research Articles

The Role of the UNIDROIT Principles of International Commercial Contracts in Investment Treaty Arbitration

The UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers investment tribunals’ use of the Principles on questions of both domestic law and international law. It suggests that reference to the Principles can play an important role of legitimation on questions of domestic law, but should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

Protecting Human Life Against Abuses of Diplomatic Inviolability - Can Distress Be Applied in Diplomatic Law?

This article discusses the possibility of applying distress as provided in Articles on Responsibility of States for Internationally Wrongful Acts in the context of serious abuse of diplomatic inviolability. The author will argue that a strict distinction between primary and secondary rules permits the application of distress in the case where receiving State violated personal inviolability of sending State’s diplomatic agents in order to stop an ongoing crime that threatened human lives. Moreover, although traditionally distress was mostly invoked by States in the context of boundary violation such as ships in distress entering the harbor of foreign States without prior permission, the rationale behind distress as well as subsequent State practices suggest its application of a general character. The author will conclude by pointing out the advantages of applying distress to compromise diplomatic inviolability: firstly, it is based on a case-by-case analysis. Thus, unlike past literature which focused on creating exceptions based on other primary rules such as fundamental human rights, this approach does not create an exception in the principle of diplomatic inviolability. By doing so, it leaves diplomatic inviolability intact for future development; secondly, it confines the possibility of disregarding diplomatic inviolability within the narrow scope of life-saving context. Therefore, it could effectively prevent possible abuses by receiving States.

Acerca de la fundamentación de la obligatoriedad de los contratos: autonomía y derecho privado

The article critically examines the discussion regarding the normative justification of the binding force of contracts, set forth in article 1545 of the Chilean Civil Code. The theoretical schemes to understand the contractual rule are presented herein, distinguishing between non-normative and normative models. The contract is an institutional notion that requires justification and not merely explanatory considerations. Such effort should be separated from the notion of will, which has faced difficulties, considering the increased legislative interventions, which characterize the governing contractual scenario since the early XX century. The explanatory relevance of personal autonomy is suggested herein, an argument articulated from the internal structure and secondary rules that constitute private law.

Shapiro’s Legality

Scott Shapiro’s Legality provides at once a defense of analytical jurisprudence, an accessible introduction to it, and an important new positivist theory of law. Shapiro seeks to answer the main traditional questions of jurisprudence: “what is it about law that makes it law and not something else?” and “what necessarily follows from the fact that something is law?” His major innovation, building on Michael Bratman’s work, is to re-imagine H. L. A. Hart’s secondary rules, including his ultimate rule of recognition, as plans of a sort. Shapiro’s overarching goal, however, is to show that analytical jurisprudence has practical relevance for lawyers. I argue that his success is limited by his failure to present a coherent theory of how judges are morally permitted to rule, particularly in cases in which the law requires them to reach results that they consider to be unjust.

MMori Law and Hart: A Brief Analysis

This is an edited version of a seminar paper presented in the context of the LLB (Hons) programme. It provides a contemporary perspective of Māori law from the standpoint of HLA Hart's theory of the union of primary and secondary rules.

Releyendo a Hart

El autor repasa las ideas centrales de The Concept of Law de H. Hart tratando de evaluar su originalidad y novedad y de discutir su corrección. De esta manera, se discuten las nociones hartianas de regla social, punto de vista interno y externo, obligación, reglas primarias y secundarias y regla de reconocimiento, así como la teoría de Hart de la interpretación jurídica y su crítica al realismo.

The Future of Aid is in Building Legitimation

The present paper is an essay about the future of aid, understood as a global, durable, social phenomenon. Special attention is attached to the issue of governance, both the governance of aid itself, and institutional reforms in the recipient countries. A short review of literature on the topic serves to support a general thesis that the stream of aid is a stream of capital, and that natural possession of that capital confers palpable economic power to whatever social agent holds it temporarily in the field of their discretionary decision. Both theoretical, and empirical development of the subject is then conducted in order to show that the main cause of unsatisfactory institutional changes in the recipient countries is the fact that aid disturbs the already frail balance between legitimation and economic power in emergent societies. In conclusion, a new paradigm of governing aid is proposed, centred on building legitimation for aid itself, i.e. on using the known experience and history to construe a broad, consistent, normative base for aid programmes. The theory of justice, as proposed by John Rawls, seems to be the right starting point for establishing the primary rules of that normative base. As for the secondary ones, a new institution, namely international arbitration of claims related to aid, is proposed as an interesting solution for progressively building the secondary rules of recognition, in the legitimation of aid.

Excusing Unlawful Use of Force Under the Law of State Responsibility

No justification for the use of force exists under international law, other than Security Council authorisation and self-defence. Creative readings of the UN Charter’s provisions on the use of force are problematic from the aspect of legal doctrine and potentially dangerous in (state) practice. However, same practice exists where states and UN organs have accepted certain consequences of an illegal use of force on humanitarian grounds. Breaching the underlying prohibition was seen as the choice of a ‘lesser evil’. Governments and scholars have commonly categorised such instances as sui generis and carved the phrase ‘illegal but legitimate’. This article captures such sui generis ‘illegal but legitimate’ practice within the conceptual framework of international law. It proposes that a distinction between justifications and excuses should be introduced to international law, whereas justifications preclude wrongfulness of an act, while excuses merely mitigate against responsibility for wrongfulness. In the context of the use of force, Security Council’s authorisation and self-defence are justifications under primary norms. When requirements for lawful use of force are not met, the unlawfulness could be excused (but not justified) under the secondary rules of state responsibility. This solution preserves the strength of the primary prohibition of the use of force, and accommodates humanitarian intervention without the Security Council’s authorisation within the law of state responsibility. Such a conceptualisation, however, also requires critical engagement with the ILC Articles on State Responsibility.

The ‘Responsibility Not to Veto’, Secondary Rules, and the Rule of Law

In this article I argue that the concept of secondary rules provides a useful tool for analysing the interplay of politics and law in the evolution of the ‘responsibility not to veto’, which represents an attempt to subject the Security Council to the rule of law. Secondary rules help to maintain the law’s overall coherence, thereby bolstering its legitimacy and hence its ability to effectively govern human conduct. Most accounts of secondary rule-making overstate the role of power while underestimating the need for powerful states to argue within the parameters set by the law itself. This contribution, by contrast, explores the interaction of power and law, and the role of secondary rules therein. It shows that the international legal order currently lacks coherence as there is no consensus on overarching principles. Hence, the legitimacy crisis of the Security Council is at the same time a legitimacy crisis of international law.

The Reality of the British Constitution: H.L.A. Hart and What 'Officials' Really Think

In The Concept of Law, H.L.A. Hart argued that one of two 'minimum conditions necessary and sufficient for the existence of a legal system' was that 'its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials'. Those rules, his 'secondary rules', form a crucial part of Hart's theory that the way to understand law is as the union of primary and secondary rules. This paper sets out to test that claim as a matter of empirical fact. If one asks UK officials what they think the UK's rules of recognition, change and adjudication are, and whether they accept them as common public standards, what do they say? Instead of interviewing judges, whose official views are readily accessible in their judgments, we concentrated on high non-judicial officials - senior civil servants, including former Cabinet Secretaries, military officers, including former Chiefs of the Defence Staff, chief constables and chief executives of local authorities. A series of recent examples of UK constitutional rules coming under stress were put to interviewees, in particular the request by Admiral Sir Michael Boyce at the cusp of the Second Iraq War for authoritative advice on the legality of the war. Interviewees discussed their understanding of how one identified legal rules, how legal rules changed and how they were settled if there was disagreement. We found some consensus but also a great deal of divergence. We also found, at least in the Civil Service, a degree of willingness to defy the courts entirely incompatible with the existence of any straightforward Hartian 'internal point of view' towards the law, at least as the courts understand it. But we also found evidence not so much for lawlessness within the UK government as for the existence of a separate legal system, centering on the figure of the Attorney-General. One way of interpreting our evidence is that there is not just one British constitution, but three, one built around the perspective of the courts, one around the perspective of the Government and around the perspective of Parliament.

‘Rules about rules’ and the endogenous dynamics of international law: Dissonance reduction as a mechanism of secondary rule-making

AbstractWe can observe some developments that indicate a further strengthening of human rights and the rule of law even after 2001. These developments are puzzling as they occurred despite largely unfavourable scope conditions. This article offers an account of these developments that focuses on dynamics endogenous to the law. These internal dynamics provide a causal mechanism that sets in once a certain threshold of legalization has been reached. We employ the Hartian notion of secondary rules which we think is an especially helpful conceptual tool to analyse the endogenous dynamics of legal systems. To the extent that law is programmed towards consistency, secondary rules become necessary in an environment of rapidly increasing legal density to govern the complexity resulting from this proliferation of norms. Upholding consistency is necessary to maintain the autonomy of law in a Luhmannian sense and the ‘morality’ of the legal system in a Fullerian sense. Our goal is to show this and at the same move beyond an argument of system or normative functionality by identifying causal mechanisms that can explain the law’s built-in drive towards secondary rules, and that are in accordance with broader social science theory. We use some insights from cognitive psychology to develop these causal mechanisms further. While testing these causal mechanisms would be beyond the scope of this paper, we hope to provide the conceptual tools for future empirical research on the dynamics of secondary rule-making and offer some empirical illustrations to demonstrate how dissonance reduction operates in practice.

POR QUE SURGEM AS REGRAS SECUNDÁRIAS? Uma reinterpretação da fábula de Hart / WHY SECONDARY RULES MIGHT EMERGE? A Reinterpretation of Hart’s Fable

In Ch. V of “The Concept of Law” Hart speaks of secondary rules as remedies for defects of a socialorder based solely on primary rules. The report setting up the scenario, describing the problems and indicatingthe solutions is here called, following Gardner, “Hart’s fable”. As to the nature of the fable, MacCormick andGardner agree that it is far from a historical report. MacCormick conceives of it as an ex post facto argumentabout the crucial role that a rule of recognition, rules of change and rules of adjudication play in our legalsystems and Gardner, agreeing with Hacker, conceives of it as the use of a genetic-analytic method that analyzethe nature of secondary rules by means of their genesis in a hypothetical scenario. My paper combines theinsights of both MacCormick and Gardner-Hacker with the idea of protection of legal positivism as a key to thereading of “The Concept of Law”. My thesis is that Hart’s fable is a thought experiment intended to show notonly the nature of secondary rules, but also the risks of compromising the functioning of secondary rules byembracing either imperativist or anti-positivist conceptions of law.

Kodyfikacja odpowiedzialności organizacji międzynarodowych

The aim of this study was to present private and official codifications concerning the topic of responsibility of international organizations. Moreover, it highlighted some controversial issues which occurred during the work of International Law Commission (ILC). The topic of responsibility of international organizations was analyzed both by private bodies such as Institute de Droit International and International Law Association and – as mentioned above – ILC. The efforts of Institute de Droit International resulted in a resolution on The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties. While in 1996 International Law Association studied these topics, a Committee on the Accountability of International Organizations was established. These private drafts paid attention of ILC to some legal issues which helped ILC to identify problems which require further discussion. After completion of its work on State responsibility in 2001, ILC decided to include the topic Responsibility of International Organizations in its work program. Mr G. Gaja was appointed the Special Rapporteur and in years 2003-2011 he presented eight reports which took into account the comments and observations received from governments and international organizations. In his reports he largely followed the model of Articles on State Responsibility for Internationally Wrongful Acts. In 2011 the Commission adopted the draft of 67 articles on Responsibility of International Organizations, divided into six parts. The Draft Articles aimed at codification of a set of secondary rules applicable to a wide range of international organizations. The codifications of rules on the responsibility of international organizations was a very difficult task due to diversity of international organizations, which differ in size, functions and competence. Furthermore, there is a lack of relevant practice that would allow to elaborate the principles relating to responsibility of international organizations. Nonetheless, the responsibility for international wrongful acts is the most important institution of international law irrespective of the subject which committed a wrongful act.

Cyber Operations as Nuclear Counterproliferation Measures

Focusing on recent malware that allegedly targeted Iran’s nuclear programme, this article discusses the legality of inter-state cyber operations as measures to prevent the proliferation of nuclear weapons approaching the problem from the perspective of the law of State responsibility, in particular the circumstances precluding wrongfulness. After examining the role that cyber attacks and cyber exploitation can play in preventing nuclear proliferation, the article explores whether cyber operations can be justified as countermeasures in response to a possible breach by Iran of its non-proliferation obligations. It then discusses whether counterproliferation cyber operations amounting to a use of force are submitted to a more lenient legal regime than other more traditional forms of the use of force in international relations. Finally, the article explores the legality of counterproliferation cyber operations from the perspective of Chapter VII of the UN Charter, and in particular of the resolutions adopted against Iran by the Security Council. The article concludes that the legality of counterproliferation cyber operations must be assessed in the light of the general primary and secondary rules of international law: neither the means used (cyber instead of kinetic) nor the aim pursued (the non-proliferation of nuclear weapons) justify a special legal regime.

The Legal Framework for Protection of United Nations Humanitarian Premises during Armed Conflict

The United Nations, its premises and personnel are increasingly present in the theatre of armed conflict across the globe. During armed conflict, un humanitarian agencies are now more likely to stay or arrive and deliver than to evacuate.1 Parties to an armed conflict may fight in close proximity to un premises. Today, from the Gaza Strip to South Sudan to Syria, during armed conflict thousands of displaced civilians seek shelter in un premises and the protection of the blue un flag, which is perceived to give better protection than fundamental principles of international humanitarian law (ihl).2 What is the legal framework for protection offered by the un flag to un humanitarian premises, including to displaced civilians they may shelter during armed conflict? To use the language of State responsibility, this paper considers the relevant primary obligations of ihl and un law, how a possible conflict between those primary obligations is resolved, and then considers the legal consequences of a breach of the relevant primary obligation in accordance with the secondary rules of the law of State responsibility. Thus, the paper addresses four questions: (1)What protection does international humanitarian law and international criminal law provide to un humanitarian operations, in particular un premises? (2)What protection does United Nations law provide to un humanitarian operations, in particular un premises? (3)What if there is a conflict between United Nations law and ihl? (4)In case of a violation of United Nations law protecting un premises, could there be circumstances precluding wrongfulness under the law of State responsibility?

Between 'Constructive Engagement', 'Collusion' and 'Critical Distance': The ICRC and the Development of International Criminal Law

This article examines the approach and relationship of the ICRC to International Criminal Law. It argues that the ICRC’s position navigates between normative support, collusion and institutional restraint. The ICRC has shaped some of the foundations of contemporary criminal justice, through its early focus on the implementation of International Humanitarian Law (e.g., through implementation and prosecution of ‘grave breaches) and its role as ‘gentle modernizer’ of the law. But it has at the same time kept a critical distance towards International Criminal Law. Its approach is marked by three cardinal principles: ‘structural independence’, ‘strategic engagement’ and ‘systemic support’. It is grounded in the distinct roles of the ICRC (‘guardianship’, ‘protection’, advocacy and dissemination’) and deeper structural challenges in the relationship between International Humanitarian Law and International Criminal Law. This contribution argues for a re-conceptualization of some of the existing approaches. It claims that it is unhelpful to theorize the relationship between the ICRC and International Criminal Courts and Tribunals (ICCTs) on the basis of the premise that International Humanitarian Law provides a set of ‘primary rules’ that are enforced through criminal institutions, or complemented by ‘secondary rules’ under International Criminal Law (e.g., war crimes law). It may be more appropriate to view the ICRC and ICCTs as part of a polycentric legal system that is built on a plurality of interactive normative structures and governed by certain checks and balances.

Economic Analysis at the Federal Communications Commission, 2012–2013

Pointing to the role of economic analysis, this article reviews major Federal Communications Commission actions and initiatives that are related to universal service support in high-cost areas that are served by price-cap incumbent local exchange carriers, special access policy, secondary market spectrum transactions, spectrum reassignments, and rules that govern interoperability among certain licensees in the 700 MHz band and spectrum ownership. Also discussed are activities of the recently created Technology Transitions Policy Task Force and challenges to communications policy that are posed by the transition to voice over internet protocol interconnection.

International Law: 'A Relatively Small and Unimportant' Part of Jurisprudence?

This paper evaluates and criticizes the account of international law given in Chapter Ten of H.L.A. Hart's book, The Concept of Law. Hart's account offers a few insights -- particularly on the relation between law and sanctions. But his account of international law is moistly quite impoverished. His observations about the absence of secondary rules (rules of change, adjudication, and recognition ) in international law are quite unjustified. His exaggeration of the difference between international law and municipal legal systems is so grotesquely exaggerated, as to deprive the former account of almost all its utility in jurisprudence. What is worse, his dismissive and misconceived account of international law has tended to drive practitioners of analytic legal philosophy away form addressing this important area of jurisprudence.

Who Made the United States Constitution?

This paper answers the question who made the United States Constitution from the perspective of general jurisprudence aided by historical evidence. On my view, to make a constitution qua law one must satisfy two conditions: (1) act intending to make a constitution while viewing oneself as having authority to do so and (2) be de facto authoritative in making a constitution. HLA Hart’s concepts of secondary rules of recognition and of change figure prominently in my account. Beginning with a sketch of the historical process of the making of the Constitution, I then identify the agents involved in it. I observe that on any plausible account the making was a cooperative process involving groups of people and thus I consider the issue of group agency, arguing that groups can act and have intentions when certain conditions are satisfied.Several candidates for the Constitution’s maker are evaluated in this paper: “We the People”, “the Drafters”, “the Ratifiers”, “the Great Men”, the states and the peoples of the states. The historical material available does not allow for a decisive answer to the question who was the maker. However, I conclude that based on the available evidence it is most compelling to view the thirteen state groups of the Ratifiers as the makers of the Constitution, because they viewed themselves as acting to establish the Constitution with authority delegated by the people of their states and because their act of ratification was, in fact, recognized as establishing the Constitution as law.

Domestic Courts and the Content and Implementation of State Responsibility

AbstractThis article examines the role of domestic courts in addressing questions of international law concerning the content and implementation of state responsibility. Practice shows that domestic courts only play a limited role in developing the international law of state responsibility. This is partly due to the limited number of cases decided by domestic courts. Furthermore, the practice of domestic courts is quite disparate, reducing their value in generating consistent practice. There is also a general inclination of domestic courts to apply remedies under municipal rather than international law, which reduces their significance as agents of international law. It is only in exceptional cases that domestic courts may contribute to clarifying controversial norms and support the further development of international law. Domestic courts may furthermore take on the task of fine-tuning international norms on state responsibility. Probably the most important role domestic courts may play in applying secondary rules of state responsibility is that of strengthening the effectiveness of the international legal system and its individual rules.