Evolution Essay

2338 words - 9 pages

Electronic copy available at: http://ssrn.com/abstract=2042004
File: Kelly 2 Created on: 1/21/2012 3:26:00 PM Last Printed: 3/2/2012 7:31:00 PM
1
THE EVOLUTION OF INTERNATIONAL LAW: ARCS AND CYCLES
Michael J. Kelly 
The theme of this conference is "International Law in Crisis." The organizers hoped that the theme would cause panelists, presenters and par-
ticipants to pause and take stock of international law as the world moves
squarely into the 21 st Century. We are called upon to think about the signifi-
cant transitional events of 2011: (1) the role of the international community
in the uprisings of the Arab Spring; (2) the capture and transfer to The
Hague of Gen. Ratko Mladić to stand trial for genocide; (3) the targeted killing of Osama bin Laden in Pakistan; and (4) the extent of President
Obama's war powers in Libya.1 Some may challenge such a theme with the observation that bodies
of law, as organic creatures, are always in crisis. Just as some famously
contend that the American Constitution is either a "living document"2 or a static code,
3 internationalists likely fall into similar camps. Yet it would be
myopic indeed to maintain that international law is always in a state of cri-
sis. Or never. Black's Law Dictionary defines crisis as "a crucial point or situation in the course of things; a turning point."4
While international law may or may not be in a state of crisis, it
does, however, evolve-as do all bodies of law, whether civil or common in nature. It evolves through application, interpretation, logical progression
and even trial and error. But it does not evolve within a vacuum. Rather,
 Professor of Law and Associate Dean for Faculty Research & International Programs,
Creighton University School of Law. B.A., J.D. Indiana University; LL.M. International & Comparative Law Georgetown University.
1 Matt Bradley et al., As Arab Spring Turns Violent, Democracy Advocates Face Big
Challenges, WALL ST. J, Apr. 23, 2011, at A8; Robert Marquand, Ratko Mladic's Arrival at
Hague Bolsters Promise of International Courts, CHRISTIAN SCIENCE MONITOR (Sept. 15,
2011), http://www.csmonitor.com/World/Europe/2011/0531/Ratko-Mladic-s-arrival-at-Hag
ue-bolsters-promise-of-international-courts; Chidanand Rajghatta, A Massive House with no
Telephone or Internet Connection Led to Bin Laden, THE TIMES OF INDIA (Sept. 15, 2011),
http://articles.timesofindia.indiatimes.com/2011-05-02/us/29495685_1_bin-laden-hunt-extra
ordinarily-unique-compound-khalid-shaikh-mohammed; Charlie Savage & Mark Landler,
White House Defends Continuing U.S. Role in Libya Operation, N.Y. TIMES, June 16, 2011, at A16.
2 Ken I. Kersch, Justice Breyer's Mandarin Liberty 73 U. CHI. L. REV. 759, 810-12 (2006) (reviewing STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC
CONSTITUTION (2005)).
3 Id.
4 BLACK'S LAW DICTIONARY 374 (6th ed. 1990).

Electronic copy available at: http://ssrn.com/abstract=2042004
File: Kelly 2 Created on: 1/21/2012...

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