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Articles 1 - 11 of 11
Full-Text Articles in Law
State Practice As Metaphor: A Reconciliation Approach, Patrick Kelly
State Practice As Metaphor: A Reconciliation Approach, Patrick Kelly
Patrick Kelly
State practice as metaphor is a broader idea than the empirical role of state practice in the formation of custom. State practice as used in this journal is a metaphor for all the methods and processes to increase the democratic legitimacy of international norms including not only the practices of states, but also other forms of representation by which citizens express their views. Increasingly norms are articulated and influenced by non-governmental organizations, private standard setting groups, quasi-public entities such as the Inter-Parliamentary Union and transgovernmental organizations such as the Basle Committee on Banking Supervision. With the advent of the internet, …
Trade, Globalisation And Economic Policy, Patrick Kelly
Trade, Globalisation And Economic Policy, Patrick Kelly
Patrick Kelly
No abstract provided.
Kenyan Politics And The Politics Of Summer Programs, Patrick Kelly
Kenyan Politics And The Politics Of Summer Programs, Patrick Kelly
Patrick Kelly
This brief article for the Proceedings of the American Society of International Law’s annual symposium discusses the interrelationship of Legal education partnerships in Africa and domestic politics using Kenya as an example. The practicalities and cultural benefits of living and studying in a foreign country are inevitably intertwined with the political tensions and aspirations embedded in that society. This article first discusses the special rewards and practicalities of a summer program in Africa; and then attempts to provide a richer, more complex picture of the recent political struggle and ethnic conflict in Kenya after the December, 2007 Presidential election. It …
Editorial, Smart Rules Uphold System, James Kelly
The Seduction Of The Appellate Body: Shrimp/Sea Turtle I And Ii And The Proper Role Of States In Wto Governance, J. Kelly
Patrick Kelly
The Article proposes new interpretations of GATT Article XX to minimize the harmful effects of recent WTO jurisprudence that threaten to undermine the goals of the trading system and diminish the role of states in policymaking. In the Shrimp/Turtle cases the WTO's Appellate Body (AB) utilized an evolutionary methodology to interpret the conservation of exhaustible natural resources exception in Article XX(g) to permit the unilateral regulation by one country of how goods are produced (PPMs) in other countries. Such an expansive approach to interpretation permits wealthy nations with large markets to unilaterally impose their preferred environmental policies, and presumably other …
Issue Editor, James Kelly
Judicial Activism At The World Trade Organization: Developing Principles Of Self-Restraint, J. Kelly
Judicial Activism At The World Trade Organization: Developing Principles Of Self-Restraint, J. Kelly
Patrick Kelly
The success of the international trade regime has created demands for international environmental policy, labor standards and other social regulatory policy to be incorporated into the WTO. This article examines the extent to which customary international legal norms should be incorporated into WTO jurisprudence and whether the Appellate Body ought to engage in creative interpretation of WTO norms when legislative development appear blocked. The article explores both the incorporation and creative interpretation debates by assessing them in light of three models of WTO decisionmaking: The Judicial Activist Model, the Contractualist Model, and the Legislative Model. The article adopts a contractualist …
Foreword: Globalization And Global Governance, James Kelly
Foreword: Globalization And Global Governance, James Kelly
Patrick Kelly
No abstract provided.
The Twilight Of Customary International Law, James Kelly
The Twilight Of Customary International Law, James Kelly
Patrick Kelly
This article criticizes mainstream customary international legal theory as lacking authority and legitimacy. Few customary international law (CIL) norms are, in fact, customary. All customary law, international or otherwise, acquires its legitimacy from the normative belief of a community. Norms may be inferred from the repeated acts believed to be required using the inductive method. CIL, however, has become a device for judges, advocates, and self-interested states to deduce or create new norms without regard to the beliefs or participation of the vast majority of states and their people. CIL norms are constructed from non-binding resolutions and soft law instruments …
Exchange Control (Enforcement Of Exchange Controls In The United States), James Kelly
Exchange Control (Enforcement Of Exchange Controls In The United States), James Kelly
Patrick Kelly
No abstract provided.
The Changing Process Of International Law And The Role Of The World Court, James Kelly
The Changing Process Of International Law And The Role Of The World Court, James Kelly
Patrick Kelly
The U.S. withdrawal of its declaration accepting the compulsory jurisdiction of the International Court of Justice and its withdrawal from the ICJ proceedings in the Nicaragua v. U.S. case caused a crisis of confidence in the Court that continues today. The underlying premise of advocates of ICJ jurisdiction has been that increased participation in ICJ jurisdiction would help resolve disputes and promote respect for the Court and international law. A new declaration by the United States, however, would be a triumph of form over substance. The United States has never effectively accepted the compulsory jurisdiction of the Court and the …