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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, …
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 …
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 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 …