Like many ASIL members, I spent a great part of my January grading nearly 100 exams for my four-credit course in international law. As usual, that course, which met at the ungodly hour of 9:15 a.m. two days a week from September through December 2006, was an exhausting enterprise not only for myself but, if the student evaluations can be trusted, for my students as well. As I told my students on the first day of class, this survey course is becoming unwieldy. While international law remains a rudimentary legal system as compared to national legal orders, its scope and, at least in certain areas, depth has transformed the course into an unmanageable curriculum. Achieving something other than a hopelessly superficial exposure to complex regimes such as the WTO’s or the laws of war is a daunting task that appears to get more difficult each year.
As indicated by my syllabus I began my course in the usual place: by canvassing the traditional sources of law as well as the leading actors (states, international organizations, NGOs). As is common throughout the U.S. legal curriculum, I emphasized the need to pay close attention to the processes by which the law gets made, interpreted, applied or breached, and not merely the black letter rules that exist today but may be gone tomorrow. I used a popular U.S. casebook, Dunoff, Ratner, & Wippman’s International Law: Norms, Actors, Process that, as is usual among U.S. legal casebooks, emphasizes problems susceptible to diverse answers or that push at the frontiers of existing law.
While the Dunoff text has considerable virtues, its kaleidoscopic use of diverse sources – doctrinal, historic, theoretical, interdisciplinary – makes some students anxious and confused. To lessen student anxiety and placate their deep-seated (if misconceived) desire for black letter answers, I also assigned Mark W. Janus’s An Introduction to International Law (4th ed. 2003) (but also suggested that students who want a deeper treatise-type introduction may want to consider as an alternative Peter Malanczuk’s Akehurst’s Modern Introduction to International Law or Ian Brownlie’s Principles of Public International Law.) Again as is usual in such courses, at least as taught in the United States, the rest of the course consisted of about 3 weeks devoted to the ways international law penetrates (or does not) the U.S. legal system, about one week devoted to international law’s limits on the reach of national law (jurisdiction to prescribe and enforce), about 3 weeks on the protection of human dignity (human rights regimes, aspects of international humanitarian law and international criminal law), and three classes devoted to trade, investment, and use of force, respectively. A final three classes sought (vainly) to “put things together” by addressing complex problems arising from the on-going “war” on terror – including developments relating to Hamdan v. Rumsfield. These last classes tried to illustrate how discrete areas of the law relate to one another and how the international legal process works. They also served to introduce students to the fact-based hypotheticals they would see on their final exam (four hours, open book) – to be taken only two days after the final class session.
My final exam was, I thought, a fair attempt to reward the dutiful and punish the lax. It tested the usual combination of skills: doctrinal knowledge, issue-spotting, and analytical ability, including with respect to judicial decisions. It was also reasonably comprehensive, touching on, at least briefly, most of the discrete regimes that we had studied. Question one demanded students to respond to sixteen short comments with short paragraphs of their own, indicating whether they agreed in whole or in part with each comment and why. Question two forced the student to play legal adviser to an unspecified UN mission and provide a detailed memorandum with respect to a proposed General Assembly resolution directed at making multinational enterprises accountable for human rights violations. Question three, inspired by certain recent developments involving German courts, forced students to play the role of government lawyer in an unspecified European country confronted with war crimes and other charges directed against a U.S. national, now retired and living in Europe, who had formerly run a prison facility in U.S. occupied Iraq. A final question demanded that students engage in the traditional parsing of cases that is the bread and butter of U.S. law schools; in this case they needed to consider prominent judicial decisions issued by ICSID tribunals, the ICJ, or the U.S. Supreme Court.
The two longer questions focused on human rights and international criminal law, respectively, two topics on which this particular class spent a fair amount of time. Both would have been entirely predictable to the diligent student in the course. Question 2 was a wholly unoriginal adaptation of the “Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights” (reproduced in substantial part in the Dunoff book at 224-25), while question 3 was a predictable riff off of Abu Ghraib (see Dunoff book at 625-46). (Indeed, I naively feared that these questions honed so closely to what the students had read and had been discussed in class that they would be too easy.)
Fears that all my students would secure indistinguishable “A’s” proved groundless as the results fell along the much desired bell shape curve. Despite the time pressures imposed by its format, the better student responses were quite impressive, even if not wholly correct (see student responses). Although no student was able to spot all the issues (or nuances) in questions 2 or 3, the better responses did a respectable job of spotting most, although seldom with any depth. As in prior years, I was struck by how often I was able to give equal credit for responses to the short comments from diametrically opposite perspectives – once students explained why they either agreed or disagreed with the statement and cited relevant authority. (These short responses always remind me how difficult it would be to craft a reliable foolproof multiple choice test on this subject – at least without an opportunity for the students to explain their answers.) As usual, I had students who achieved top scores on questions 2 and 3 who fundamentally differed with respect to the bottom line advice to be given to each hypothetical client. I had fine responses culminating with a recommendation to the ambassador to vote against G.A. Res. XXX in question 3 because of the number of places where that draft resolution went beyond existing law, but also excellent responses urging a vote in favor of the resolution – as by those who noted abundant examples of “progressive” development in the resolution but who believed that urging such “desirable” changes in the law was a worthwhile use of the relatively powerless General Assembly. Similarly, there were as many students who achieved high scores on question 4 who predicted a successful defense by Mr. Karpy with respect to at least some of the possible charges as those who found none of his possible defenses credible.
While I am hardly an objective observer, I thought the class was a qualified success. The better exams, even if imperfect, suggest that at least those students got a decent introduction to this encyclopedic subject. But as usual (at least with me), the student evaluations of the course and of me as a teacher were humbling, as was the performance of the bottom of the class. As in past years and despite my efforts to improve, it was clear that some students were put off by my choice of written materials, the volume of the subject matter, the speed of my delivery, my misfired attempts at humor, my ill-concealed politics, or all of the above. (This year, fortunately, there was no comment quite as bad as a few years ago when a student had written simply “This was the very worst educational experience I have ever had, including kindergarten.” A word to the wise: always read student evaluations with a bottle of scotch, or something equally sturdy, at hand.) The thought that my course may have put off even one student who once thought that she was interested in international law pains me – but always motivates me to try harder next year.
Looking back at my course, circa 2006, there were things that I might have done differently. I might have assigned less reading for each class; assumed a bit less knowledge; or given those “on call” more advance notice. My own preoccupations (not to mention those of the editors of the front page of the New York Times) probably made this particular course at this time in our nation’s history focus too much on human rights and the related issues raised by Hamdan – at the expense of even a rudimentary introduction to international environmental law or the law of the sea, to mention only two subjects that fell by the wayside in my haste to delve into the law governing military occupation and military commissions.
But this was also a course in which a Ph.D. candidate from France sat in -- the better to write her dissertation on how U.S. approaches to both the topic and the teaching of international law differ from those presented or used by the French. Her presence, and conversations after class, suggested more serious criticisms.
As is suggested by the current issue of the Maine Law Review (Volume 58, Number 2 (2006)), devoted to French and American perspectives towards international law, my course could easily be criticized for contributing to “American unilateralism” along the lines suggested by Gilbert Guillaume, former President of the ICJ, in that issue. (See Gilbert Guillaume, Preface, 58 Maine L. Rev. 282 (2006)) My course materials are, as he might suggest, unduly eclectic and include materials from other disciplines far removed from positivist legal doctrine. Thanks to the influence of American legal realism, and particular “schools” of international law within the United States, such as international legal process, Yale’s policy-oriented jurisprudence, and critical legal studies, my course could easily be criticized for injecting, as he puts it, “ideological moralizing” or for confusing political, economic, or social considerations for the positive law. It would not be unfair to say that the problem method emphasized by my chosen casebook denigrates deductive reasoning and formalism. Its (and my own) emphasis on “process,” “soft law,” and non-state actors casts doubt on the traditional Article 38 sources of law, the role of state consent, and strict divides between the worlds of public and private national and international law.
Guillaume would argue that, much as I would like to think otherwise, what I do relativizes the law and weakens its obligatory character. From his perspective, my course leads students to assume that law is endlessly malleable and can always be adapted to suit desirable political objectives. (Indeed, the flexibility of my grading – acknowledged above – would probably only confirm his worse fears.) Further, Guillaume’s critique of U.S. legal education suggests that my course, with its undue emphasis on the problems of terrorism and human rights, emphasizes “American” values, including economic rationality, the search for effectiveness, morality, religion, and judicial justice, as opposed to French values such as the dissociation of morality from law, the importance of formalism, and the separation of economic concerns from law. (See Guillaume, at 284.)
Moreover, French critics might suggest that my course, like the U.S. Restatement on Foreign Relations, wrongly conflates public international law with U.S. constitutional law relating to foreign relations. I (along with my chosen casebook) put the United States, and its legal system, along with the rights of the individual, front and center, relegating to second tier importance the views of others or the needs of the international community. The resulting predictable emphasis on U.S. courts’ reticence to incorporate international law wrongly suggests to students that treaties and custom are as insignificant in other legal systems as they are in the United States or that international law aspires to be as court-centered as is the U.S. legal system but falls far short. Whether because of these flaws or the impact of “neo-liberal” international relations theories or faddish “critical legal” thinking, courses like mine, intentionally or not, bolster realist skepticism concerning international law’s efficacy and even its legitimacy as “law.”
Although Emmanuelle Jouannet, a professor from Paris I, presents a more even-handed analysis of the relative values of French and U.S. approaches to international law in her contribution to the Maine symposium, she also suggests that U.S. legal education, for all its virtues and innovations, perpetuates a “culture of distrust” towards multilateralism and “encourages the development of an American national vision that, even in its liberal form, leads to supporting international action in favor of the international community only to the extent that it advances the most immediate interests of the United States.” (see Emmanuelle Jouannet, French and American Perspectives on International Law: Legal Cultures and International Law, 58 Maine L. Rev. 292, at 315 (2006)). From this perspective, that even courses devoted to international law in U.S. law schools should suffer from such flaws helps to explain why the United States privileges unilateral or bilateral action over multilateral cooperation.
For most U.S. members of the Society, these are fighting words. While I have my own answers to these charges, along with some defenses of what we do in U.S. law schools, I prefer to use this column to start a conversation about what all of us, whether in the United States or abroad, teach and why. I ask ASIL members (both those who live in the United States and the 40 percent of our members who reside abroad) who taught courses in international law over the past year, whether in a law school or undergraduate setting, to respond to this column with one of your own, being sure to include your own syllabus and, if possible, your own final exam and set of best student answers.
Send your contributions to our deputy director Richard LaRue at email@example.com. If we get a useful set of responses we will find a way to make these available to all ASIL members through our website. If we get a “model answer” to the challenge issued by French international lawyers, I will use a future column to call attention to it.
In my last IL.post column, “On Judicial (Dis)Empowerment,” I criticized the Military Commissions Act for, among other things, stripping U.S. resident aliens of habeas protections. A recent survey of the numbers of foreign-born individuals presently serving in the U.S. military, including in Afghanistan and Iraq, suggests yet another reason why this law is unconscionable. According to the Migration Policy Institute, a non-partisan NGO that collects such data, there were 68,711 such individuals on active duty as of May 2006 and approximately half of them were non-citizens. Link to http://www.migrationinformation.org/USfocus/display.cfm?ID=572. While a July 2002 executive order makes these individuals eligible for expedited U.S. citizenship, the idea that those who have served on our armed forces, or their family members who are no less deprived of their presence during their service than any other military family, can be locked up indefinitely without being charged or can be brutalized while in detention and have no right to have their confinement or the conditions of their detention reviewed by an Article III court should offend all of us, irrespective of where we were born. Surely at least those whom we ask to protect the rule of law elsewhere ought to be entitled to it at home.