In my ILPost column of Feb. 12, 2007, entitled “International Law 101: A Post-Mortem,” I engaged in a critique of my fall semester 2006 international law course. (See http://www.asil.org/ilpost/president/pres070209.html). Apart from including web-links to my syllabus, exam, and a model student exam response, I summarized some of the critiques of U.S. teaching made by two prominent French commentators (and published in a recent issue of the Maine Law Review). I suggested that other ASIL members may wish to emulate my example by making available to ASIL members their own syllabi and exams. I also solicited responses to the French critiques of how and what we teach.

Today’s column, as well as a forthcoming one in August, is devoted to some of the responses that I have received. (I am still waiting, however, to receive readers’ syllabi and/or exams and I would be happy to make these available to others, particularly those who use a different casebook than the one that I use.)

The authors of the casebook that I use, Jeffrey Dunoff, Steven Ratner, and David Wippman took up my offer and have sent me a detailed response to my column addressing their casebook. Their response to the French critiques of how and what we teach is reproduced below. Should the authors of other U.S. casebooks in the field wish to emulate Dunoff-Ratner-Wippman’s efforts, I welcome those responses as well.

Response by Jeffrey Dunoff, Steven Ratner, and David Wippman

We are grateful to ASIL President Jose Alvarez for the invitation to respond to his February 2007 “President’s Column” discussing his fall 2006 international law class. His reflections provide a welcome opportunity for all of us who teach public international law to reflect upon what we do in our classes, and why we do it. We cannot fully address all of the issues that Professor Alvarez raises in his essay. Instead, we will address several of the concerns that a “French critic” – or others – might raise about our textbook, International Law: Norms, Actors, Process. In particular, we discuss whether our book (1) embraces a form of realism corrosive of the rule of law; (2) employs interdisciplinary materials “far removed from positivist legal doctrine”; and (3) inappropriately emphasizes American values and preoccupations. Our answers, in brief, are non, oui, and non, respectively.

I. Realism

Our approach to international law stands without apology in the tradition of legal realism, including other approaches that realism inspired. As a result, our goal is to help students understand how law operates and how legal decision-making takes place – for which formalistic analysis of texts and cases offers only the most limited of answers. Judge Gilbert Guillaume raises a familiar canard in his Maine Law Review essay by accusing “the American doctrine” of “weakening the obligatory character of norms in international law.” This observation is incorrect in several respects. First, there is not one American doctrine at all, but multiple approaches developed over the years by different scholars many of whom would strongly disagree with each other about the nature and function of international law. Those doctrines share an anti-formalism, but they are not a uniform chorus. Indeed, they are not even all anti-positivist insofar as positivism views law as a matter of social fact rather than moral construct and believes that lex lata and lex ferenda are distinct issues. Second, anti-formalism is hardly a uniquely American phenomenon, as scholars around the world, with such diverse approaches as policy-oriented jurisprudence and the New Stream, have embraced its insights.

Third, and most important, a pedagogy that helps students see how rules are actually applied by states, international organizations, tribunals, and other major actors helps inform them what precisely is viewed as obligatory, and contributes to an understanding of obligation far richer than that offered by formalism. To take a somewhat mundane example from our book (and others), students learning about the criteria of statehood could simply read the Montevideo Convention and conclude that a state is an entity which possesses a defined population, a defined territory, a government, and the capacity to carry out foreign relations. They could just as easily go on to conclude using Cartesian logic that international law requires states to treat (though not necessarily recognize) as states entities meeting those criteria and not treat as states entities not meeting those criteria. But how, then, to explain the statehood of Somalia, or Israel, or members of the Eastern bloc in the days when the Soviet Union controlled their foreign relations? To grasp what exactly is obligatory and what is not requires appraising how key decisionmakers have interpreted and applied this black-letter formula. If the result is that the rule is seemingly less obligatory than one thought from just reading it out of context, that is a lesson to be embraced, not avoided.

Finally, an appreciation of process is not, as Guillaume suggests, somehow inconsistent with the goal for international law and lawyers of “respect for international norms” and “assuring [their] application.” Guillaume seem to think that describing the world as it is to students means endorsing all decisions as lawful or reconciling oneself to the status quo. This is not what anti-formalism or process-oriented approaches at all require. We can identify law obedience and law violations; but we also need to identify where, frankly, the law might be undergoing transformation. It is precisely understanding the differences among these (and other) outcomes that is likely to promote the rule of law in the long term. If we teach our students only what the ICJ or a treaty says and do not show them what states and others have done, we do them a great disservice for enhancing respect for law. Again, to take another example from our text, should a student see Iceland’s approach to the EEZ and its flouting of the ICJ’s 1974 decision as simply law violation? Does it not matter that, in the end, all states adopted Iceland’s position on fishing zones? Why is it degrading to the law to accept that most rules are not eternal, and that the law may change through processes less orderly than treaty-drafting?

II. Interdisciplinary Materials

Our interest in interdisciplinary materials springs from many of the same realist sources. Realism teaches not only that legal rules often cannot generate determinate outcomes to specific legal controversies, or that legal questions cannot be answered by reference to the inherent nature of abstract legal categories like “sovereignty” or '”human rights.” Realism also suggests that legal principles are social constructs, designed by specific people in specific historical contexts for specific purposes. The interdisciplinary materials we provide help our students appreciate those contexts and identify those purposes, and hence become more capable and – we hope – more thoughtful lawyers.

For states and other legal actors, legal problems do not arise in the abstract. Hence, virtually all of the problems we use provide historical background that contextualizes the issues presented, and helps the students identify the various, and at times conflicting, political and legal goals of the various parties. Moreover, we believe that interdisciplinary materials can help students not only to see how best to achieve a party’s goals, but also to understand the purposes of various legal doctrines. Thus, for example, we think it is virtually impossible to understand the key principles of international trade law without some knowledge of economic theories of comparative advantage. It is difficult to grasp much of international environmental law without some familiarity with the economic theory of market failure, or rational choice theories of public goods and collective action problems. Student comprehension of the issues raised by domestic court assertions of universal jurisdiction over international crimes or extraterritorial assertions of domestic regulatory regimes can be enriched by concepts like externalities and cost-internalization. Debates over the need for and efficacy of international institutions in one or another area are often informed by theories regarding the comparative advantages of centralized versus decentralized governance or rational choice arguments about transaction costs. Students can better predict when soft law is likely to be effective if they know the difference between cooperation and coordination games.

We recognize that our approach rejects the notion that international law is an entirely autonomous discipline. That said, we do not think that the claim that legal reasoning does not consist solely in the logical deduction of the outcome of cases from fixed, determinate rules entails the more radical claim that law is indistinguishable from politics. Instead, as suggested above, the process-orientation of our materials directs attention to questions of institutional competencies and roles, and our materials repeatedly explore the various interpretive techniques that constrain decision-makers.

Finally, we think that interdisciplinary materials, particularly the feminist and other critical materials that we include, can help students identify international law’s limitations, blind spots, and biases. An international law casebook should not be a polemic for the existence or efficacy of international law. Rather, it should empower students to enter the field with a sense of the discipline’s range and reach, its possibilities and limits. Whether in practice or the academy, whether working on particular legal issues or generating broad new proposals designed to transform the field as a whole, familiarity with interdisciplinary materials and approaches can help attorneys recognize the (often unacknowledged) assumptions that underlie certain arguments, texts and doctrines, and generate alternative arguments. In short, our book uses interdisciplinary materials because they can enhance an international lawyer’s understanding and effectiveness.

III. U.S.-Centric?

For better or worse, powerful states have always played leading roles in shaping international law and the dominant legal texts of the day reflect that reality. Since the United States is the world’s strongest military, political, and economic actor, it should come as no surprise that many of the problems in our book relate centrally to the United States. But over 2/3 of the problems we use center on issues in which the United States is not the lead actor. Moreover, a more accurate assessment would note the mix of problems involving conflicts between developed states, between developed and developing states, and between developing states.

The more significant question is whether the casebook and its level of attention to the U.S. legal system and problems of central interest to the United States, such as terrorism and individual rights, unduly privileges American values and preoccupations and in the process denigrates the views of others or the concerns of the international community. Our book’s attention to individual rights admittedly reflects a western (rather than solely a U.S.) preoccupation, but then, international law itself has long reflected the interests of western states. More telling is the concern that extended treatment of U.S. courts’ reluctance to apply international law, or the U.S. government’s apparent willingness to disregard international law on issues such as the use of force or the treatment of detainees, might suggest wrongly that international law plays an equally marginal role in other legal systems and is equally likely to be disregarded by other states.

We devote considerable attention in Part III of our book to the relationship between international and U.S. law, in large part because most of the students using our book will practice in the United States. We suspect that international law books used in other countries, in addressing the domestic-international law relationship, focus on their own domestic law more than the domestic law of other states for the same reasons. We acknowledge that U.S. courts are often more reluctant than courts in some other jurisdictions to rely on international law as the rule for decision in particular cases. Indeed, we seek to make that apparent at various points in the text and in some instances to offer explicit comparisons with other national legal systems’ treatment of the same issues. At the same time, to suggest that courts in most states routinely do base decisions on international law would be at least equally misleading; a focus on the application of international law in European courts might suggest a greater deference to international treaties and custom than exists in Asia, Africa, the Middle East, or elsewhere.

More importantly, we think the criticism mistakenly conflates contemporary U.S. positions on highly publicized issues with treatment of the issues themselves. Our materials, like those in most U.S. casebooks, center on problems that admit of multiple possible interpretations and responses. We provide ample basis in the materials to criticize U.S. positions and attitudes. The Supreme Court’s decisions in the consular notification cases, for example, typically provoke vigorous classroom debate on the appropriate relationship between domestic and international law.

More dramatically, inclusion of materials dealing with U.S. preoccupations (e.g., using the war in Iraq to illustrate use of force principles or Abu Ghraib to examine the law governing treatment of detainees), far from privileging U.S. government positions, in fact exposes them to sharp critical analysis. We could, of course, include more problems such as the Rainbow-Warrior Affair in Chapter I. In that incident, French commandos blew up a Greenpeace vessel, killing one of its crew, and the French government then vigorously resisted an equitable solution based on international law and eventually openly breached a settlement agreement with New Zealand. We doubt, though, that French international lawyers would view such problems as illustrations of French preoccupations and values.

In the end, no casebook can be all things to all people. The selection of course materials inevitably involves difficult choices about what is more important and what less so, about the nature of law and the role of legal institutions, about the book’s intended audience, and about the relationship between process and doctrine. Our book and our own teaching emphasize legal process and real-world problems in an effort to engage students and help them appreciate the complexity and interrelated character of international legal issues as they appear to lawyers in practice. We are very much conscious of the criticisms of this approach but think it stands up well against the alternatives.

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