Review Essay: Too Much Order? The Impact of Special Secondary Norms on the Unity and Efficacy of the International Legal System Axel Marschik* 1 Introduction The diversity of international secondary norms has been the subject of increasing attention over the last decade. While primary norms regulate the behaviour of subjects of international law, secondary norms regulate the primary rules: creation, modification, extinction, interpretation and operation. The distinction between primary and secondary norms1 was adopted by the International Law Commission (ILC) in its analysis of state responsibility. Regimes of international law which combine certain primary norms with a distinct set of secondary norms designed to ensure the operation of those primary norms have since been termed `subsystems' of international law. The possibility of legal problems arising from the multitude and diversity of international norms was initially perceived with respect to primary norms. The extensive interrelations between states after 1945 brought a substantial increase in the number of international primary norms. It became evident, however, that the mere existence of these primary norms did not create order. On the contrary, the unorganized mass of - sometimes similar, at other times conflicting - primary rules made the system of international law more and more confusing: it became difficult to see the forest for the trees. As a result, some primary norms were equipped with special secondary norms to ensure their proper application and to resolve conflicts between norms. With the evolution of more precise, specialized and detailed primary norms it became necessary to design tailor-made secondary norms or flexible fora, such as international organizations. The last decades have consequently witnessed an increase in the number of subsystems in nearly all fields of international law. While this development has undeniably contributed to a better application of primary norms, the ensuing multitude and variety of subsystems has also resulted in a new structural disarray as each set of secondary norms can only assist in the operation of the specific primary norms within its own subsystem. Conflicts between subsystems have subsequently emerged, creating unprecedented difficulties for practitioners and scholars. The Netherlands Yearbook of International Law (NYIL) has always been in the forefront of journals focusing on contemporary issues of theory in international law. In a widely-acclaimed article in the 1985 Yearbook, Bruno Simma studied, for the first time, the relationship between subsystems and general international law.2 Since the publication of that article, structural questions of subsystems and international regimes have been treated in several NYIL articles. To commemorate the twenty-fifth volume of the NYIL the editors devoted the entire Yearbook to one topic: the effects of subsystems on the system. This special volume, written by the Board of Editors, was also published separately in book form.3 As the issues discussed in this book are the subject of growing interest among both scholars and practitioners, it seemed appropriate to analyse them in greater depth than a normal book review would allow. * Austrian Ministry of Foreign Affairs, Ballhausplatz 2, A-1010 Vienna, Austria. The opinions expressed in this article are purely those of the author. 1 The distinction has its origin in Hart's legal theory; see H.L.A. Hart, The Concept of Law (1961). 2 Simma, `Self-Contained Regimes', 16 NYIL (1985). 3 L.A. Barnhoorn and K.C. Wellens (eds.), Diversity in Secondary Rules and the Unity of International Law (1995) [hereinafter Diversity in Secondary Rules].
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