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.
Pauwelyn Joost (2011) ‘Is It International Law or Not and Does It Even Matter?’ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1950068 p. 29 [accessed 31 March 2014]. In order to eliminate at least some of the controversy over international law’s rules of recognition and promote legal certainty the Vienna Convention on the Laws of Treaties (vclt) was drafted in the aftermath of World War II. Pre-Vienna the rules of recognition (as well as rules of adjudication and change) governing international treaty law were rather primitive. While traditional international law prescribed certain grounds of invalidity and the termination of treaties this regulatory structure was only rudimentary. The drafters of the Vienna Convention therefore codified a comprehensive set of rules of recognition change and adjudication governing international treaty norms. At Vienna weaker actors fought hard to codify secondary rules which would protect their interests vis-à-vis powerful states for instance by insisting on the inclusion of a provision which posits the invalidity of a treaty which was concluded under duress. The adoption of this provision has been hailed as a ‘democratization of international legal relations’ because it broke with a long-standing practice of concluding unequal or leonine treaties a practice which after the adoption of the un Charter and the decolonization of the global South had been increasingly delegitimized. See Antonio Cassese International Law in a Divided World (Oxford: Clarendon Press 1986) p. 189.
LuhmannRecht der Gesellschaft pp. 18–19 222–223 272 368–372.