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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, …
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 …
The Right To Equal Education: Merely A Guiding Principle Or Customary International Legal Right?, Connie De La Vega
The Right To Equal Education: Merely A Guiding Principle Or Customary International Legal Right?, Connie De La Vega
Connie de la Vega
In San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), the United States Supreme Court held that wealth discrimination was not illegal discrimination and that the right to be educated was not a fundamental constitutional right. This article contends that international human rights law provides broad authority for a right to equal opportunity to education and is a useful tool for those seeking to develop theories that that right exists under either the state or federal constitutions. This article provides a brief introduction to those cases in which courts have been asked to look at international human rights …
The Symposium On International Human Rights Law In State And Federal Courts: Comments, Connie De La Vega
The Symposium On International Human Rights Law In State And Federal Courts: Comments, Connie De La Vega
Connie de la Vega
This article responds to and comments on an Application of International Human Rights Law in State Courts: A View from California, an article by Paul L. Hoffman appearing in the Symposium on International Human Rights Law in State Courts. It agrees that the most promising use of international human rights law is as an aid in interpreting federal and state civil liberties and civil rights laws. The article primarily outlines ways in which and that certain provisions treaties or of customary law may be invoked as arguably binding on state and federal courts.
Application Of International Human Rights Law In State And Federal Courts, Connie De La Vega, Stephen Rosenbaum, Kathryn Burke, Sandra Coliver
Application Of International Human Rights Law In State And Federal Courts, Connie De La Vega, Stephen Rosenbaum, Kathryn Burke, Sandra Coliver
Connie de la Vega
This article provides a substantive discussion of international human rights law and how it can be used in federal and state courts to protect human rights within and outside the United States. It provides a comprehensive analysis of cases and examples of possible areas in which international human rights standards may be used to interpret United States laws. Specifically, the article seeks to promote more extensive use of international human rights laws by United States lawyers. State and federal courts have traditionally used international law for the application and enforcement of treaties to which the United States has been a …