Hans Kelsen on Judicial Law-Making by International Courts and Tribunals: A Theory of Global Judicial Imperialism?

Abstract

This paper examines Hans Kelsen's theory of international adjudication and its political implications in the context of Kelsen's post-war calls for compulsory jurisdiction. It defends Kelsen's position on judicial law-making against claims by scholars such as Hardt and Negri that it amounts to a theory of 'judicial imperialism'. The paper, to finish, examines the ramifications of Kelsen's theory of compulsory jurisdiction in times of fragmentation.

Keywords: Hans Kelsen; international courts and tribunals; theory of adjudication; judicial lawmaking; compulsory jurisdiction; Hardt and Negri; judicial imperialism; fragmentation