J. Patrick Kelly (Widener University – School of Law) has posted Naturalism in International Adjudication (Duke Journal of Comparative & International Law, Forthcoming) on SSRN. Here is the 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.