• Selected
• Entire List

Abstract:
This article asks to what extent and by what processes should international legal norms be incorporated into domestic constitutions particularly in developing countries. It raises several concerns about the democratic legitimacy of many international legal norms and therefore about the wisdom of the developing countries incorporating international legal norms into domestic law without extensive political deliberation. The internationalization of constitutional interpretation rests on several problematic assumptions. First, proponents of internationalization of constitutional interpretation assume that several international norms, originally only human rights but now increasingly environmental norms, are universal and should be incorporated without specific democratic approval. Second, other international norms, delineated as customary international norms, are perceived to be formed by the consent of the world community of nations and are therefore obligatory.

The importation of international norms by developing countries is especially problematic because they have so little input into international norms and institutions. Developing countries are receivers of international law, not makers of international law. Such norms may be of questionable legitimacy in these societies, and may be inappropriate policy choices in countries at a different stage of economic development than more developed western countries. My concern is that with globalization and the increased dominance of the western democracies in international law formation there has been a turn away from consent as the basis of international law making and towards Naturalism. Premature international legalism takes normative development and sensible trade-offs out of the realm of both international and domestic politics without the necessary political deliberation. Rights have costs both in financial resources and political resources that should be assessed along with competing claims.

Comparative Constitutional law, customary international law, constitutional interpretation, democratic legitimacy, globalization, constitutional rights, international law, social policy, legal theory

Abstract:
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 PPM social policies, on nations at a different level of economic development. Developing nations dependent on export markets for economic development would be forced to choose between unwanted costs that reduce their comparative advantage or the loss of market access.

The Article criticizes the AB's evolutionary methodology as a form of Naturalism inconsistent with the AB's delegated authority, contrary to the consent-based structure of governance at the WTO and the clearly articulated views of the majority of Member nations, and incompatible with the original understanding of the Article XX(g) exception. The Article then suggests several interpretive strategies to minimize the harmful potential of unilateralism and to restore balance to global policy negotiations.

World Trade Organization, WTO dispute settlement, WTO Appellate Body, International trade, globalization, trade and environment, international legal theory, social policy, emergency exception, international adjudication, international trade policy, global governance, developing countries, GATT

Abstract:
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 rather than widespread state practice or evident belief. In a diverse world of many different values, interests, and cultural histories valid CIL norms will be rare. The article suggests only more democratic consensual processes will produce effective norms in a decentralized international community without a consensus on values.

international law, customary international law, international legal theory, custom, consent, international adjudication, international court of justice, legitimacy, persistent objector, global governance, international governance, judicial activism

Abstract:
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 approach arguing that judicial activism undermines the democratic legitimacy of WTO norms and their effectiveness.

World Trade Organization, WTO dispute settlement, WTO Appellate Body, international legal theory, trade, social policy, international adjudication, customary international law, trade and environment

Abstract:
By what processes should international legal norms be made? This paper argues that international and domestic tribunals are increasingly utilizing forms of "Naturalism" to articulate norms rather than using methodologies based on the consent of states as traditionally required. The paper discusses several types of naturalism including the misuse of customary international law, the evolutionary or expansive interpretation of treaty norms, and the adoption of a universal ideology of human rights. It argues that naturalistic methodologies undermine the legitimacy of norms, mask unresolved conflicts of values and interests that reemerge, and short-circuit more effective international lawmaking processes and solutions.

international law, international legal theory, World Trade Organization, international tribunals, international adjudication, customary international law, sources of law

Abstract:
This article argues that the Appellate Body should interpret the WTO agreements narrowly as a self-contained, contractual regime limited to interstitial interpretations. Claims that the trade regime is subject to modifications by controversial customary international legal norms or should be interpreted in a teleological manner are inconsistent with the Dispute Settlement Understanding and state consent.

Unilateral trade sanctions to advance preferred environmental and social policies are, in most cases, the wrong solution for underlying problems of poverty, poor governance, and inadequate public investment. Policies that encourage economic development and a market-based economy enhance civil society and create public demand for a better environment.

World Trade Organization, trade, international law theory, dispute resolution, social policy, trade and environment, WTO Appellate Body

Abstract:
This Article critically analyzes the principal legal arguments made to justify the use of force by the United States in Iraq and Afghanistan. The author argues that the revisions in the law of state responsibility as well as UN Security Council acceptance support the use of force in Afghanistan, but the use of force in Iraq was neither justified by existing doctrines of self-defense nor authorized or accepted by the UN Security Council.

use of force, national security, preemptive self-defense, anticipatory self-defense, Article 2(4)

Abstract:
The "optional clause" of the Statute of the International Court of Justice permits a state to declare, at its option, its acceptance of the compulsory jurisdiction of the Court. The optional clause system was created in the political euphoria following each of the world wars in the hope of developing a world governed by the rule of law. This attractive vision was flawed from the outset. Acceptance of compulsory jurisdiction requires the surrender of important decisions that may affect national security to a court whose judges are drawn from many different cultural traditons. Only a few nations have submitted such a declaration and their number has been declining.

The article argues that nations are unwilling to accept international adjudication by a court of general jurisdiction for two primary reasons. First, the inflexible, zero-sum nature of adjudication makes it a politically unattractive method of settling disputes among states. Second, there are fundamental disagreements among nations about the governing rules and principles of international law and their appropriate application. Nations are reluctant to commit themselves to judgement based on principles that they regard as incorrect.

International Court of Justice, World Court, Optional Clause, compulsory jurisdiction, international jurisdiction, international adjudication

Abstract:
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 many proposals to re-accept it are similarly illusory. More importantly, the compulsory jurisdiction system assumes a level of agreement on both the substantive content of customary international law and on the process of norm creation that does not exist in the modern world.

The little used and nearly powerless World Court is not the proper institution to resolve fundamental disagreements about the content of norms and how international law is made. The Court lacks both the authority to do so and the power to impose its decisions. Unlike a domestic supreme court, the World Court is not the final interpreter of international law. Its jurisdictional mandate is limited to disputes voluntarily referred to it either by an ad hoc agreement or by a prior acceptance of jurisdiction. There is, as yet, no common ethos of values, no constitution with vague natural law provisions such as due process, equal protection, or natural justice entrusted to the Court to interpret and impose on all states.

international court of justice, international law, compulsory jurisdiction, world court

Abstract:
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 draws on several narratives including Neo-colonialism, demographic determinism, British divide and rule, and Democratic Legitimacy to help explain events.

legal education, Africa, Kenya, neo-colonialism, ethnic clashes, summer abroad programs