Professor Patrick Kelly Examines Inherent Difficulties in International Law
Web Editor - Published: February 7, 2008

On Monday, February 4th, Professor Patrick Kelly addressed faculty and administrative staff on trends in International Law in preparation for his presentation at a symposium on International Adjudication at Duke Law School. Part of continuing faculty development efforts, Professor Kelly’s talk offered interesting insights into some of the problems facing efforts to codify international legal principles.

Professor Kelly emphasized that two philosophically opposed groups are driving the debate about International Law; Progressive Internationalists see the potential to make International Law a check against state power while State Rationalists believe that there is no binding International Law because treaties made between sovereign states are “at-will” agreements. International Law has relied on naturalism to determine standards because no central authority exists. As a result of the uncertain legal climate, Progressive Internationalists have embraced a premature international legalism, while State Power Rationalists continue to deny that standards can or should be created.

Professor Kelly finished up his engaging talk with a consideration of how countries look at torture, noting that the vast majority of nations accept international conventions against torture. While he noted that some states comply by subtly shifting what they define as torture, he also stressed that International Law “is not normative because different states have different cultural backgrounds.” Following up, he asked the rhetorical question, “Does this mean that some countries have to change their policies on Human Rights because of International Law?” Professor Kelly finished the talk by noting that he believes that International Law will move away from the creative interpretations of existing statues and move towards trade regimes that can develop standards.