The future of teaching international law
When legal scholars gather for an annual – or in the case of the International Law Association (ILA) biannual – meeting, there is normally no shortage of topics. There are so many substantive issues that one aspect that impacts every legal career often gets lost: teaching. It is thus to be welcomed all the more that the ILA devoted an entire afternoon session to the issue of teaching international law at its recent joint ASIL-ILA meeting in Washington, D.C. Not least attendance records at this session indicate the importance of the topic: in a packed conference room, the panel and the audience discussed central aspects of the teaching of international law – the question of how we should teach, what we should teach and whether students should be obliged to take at least an introductory course to public international law. As we listened to these discussions, we realized that the way in which the law is taught, what law is taught and how, can also significantly affect our research. We believe that the discussions about teaching do not only impact teachers and students, but also those generally interested in legal culture(s). Young teachers ourselves, we were caught by those practical and theoretical considerations.
What do we teach, and how?
“Teaching is not a traditional topic at ILA meetings. That is surprising, because all of our professional lives are determined by teaching.” said John Gamble, chair of the ILA Teaching of International Law Interest Group. The ILA constitution does not mention the teaching of international law, and neither does the American Society of International Law’s mission statement, although Charlotte Ku, ASIL’s long-time executive director, pointed out that it was at least implied through the mission to “foster the study of international law”. It became clear throughout the presentation of the panel, made up jointly by the ILA and ASIL (a nice feat of this year’s joint meeting of these two eminent organizations of international legal scholars), that the teaching of international law is not only important because of international law’s inherent value, but also – and perhaps more importantly – because international law allows students to put into question their domestic legal systems and to approach issues globally.
But how do we engage with students better? Do we, as teachers of some kind, need to engage all students, not only those who are “naturally” interested in these issues? Math Noortmann presented some interesting teaching methods, including video clips. Several clips used well-known pop songs as background music while showing situations of conflict and severe violence. While he sought to speak on the “how” to teach international law, the question quickly turned to “what is it that we actually want to teach?” Some participants voiced concern over the risk of “sensationalization” that might particularly be enhanced through the use of videos. But the content – and that is where the nexus to the question of what we teach appears – was no less controversial. Cecilia Baillet for example pointed out that the video clips underlined a shift in the subject of teaching international law: Originally a law made to secure peace, the main focus of international legal studies has, according to her, shifted especially since 9/11 to lessons mainly dealing with terrorism, military action, targeted killings and so forth. She advocated for a turn back to what she calls “the international law of peace”.
Teaching international law in Germany
Another question raised by the panel was whether or not international law ought to be a compulsory course. This might be particularly interesting for Germany, where international law is – according to a survey taken by members of the panel – not necessarily a compulsory subject. (After a short look into the study and examination regulations at our home universities we had some doubt about this finding, though. Several states, e.g. Bavaria, but also Berlin, require that candidates for the first state examination be knowledgeable about basic principles of international law and their relation to domestic law. To what extent this is also translated into practice would be an inquiry beyond the scope of this report.) At the same time, according to the survey, most European countries see international law as a mandatory subject to be taken by students in their law studies. Similarly to Germany, in the US almost no law school requires students to take an introductory course to public international law. Many advocated however that it should be mandatory: with a world becoming more and more international, not least in the commercial area, students study very specific aspects of international law relevant for their fields of law. Without an introduction to public international law in general, they might however be missing the context and general understanding of the underlying system and might thus lack a general knowledge enabling them to become good lawyers.
Fostering a better understanding of the relation between domestic and international law
Rethinking the possibilities of legal education and the impact education has on the way in which law is applied tied into many of the substantive sessions that took place throughout the week. An earlier panel on the role of international law in domestic courts might serve as an example.
This panel, composed of members of an ILA study group on this issue, presented its report in which it laid out three ways in which domestic courts typically deal with international law: courts may choose to align with international law, or they may choose to contest international law. A third way, and perhaps one that is currently understudied, is avoidance: courts may also choose to simply ignore international law. But avoidance becomes increasingly difficult for states, as the study group’s rapporteur Antonios Tzanakopoulos explained. International legal obligations are increasingly “inward-looking”, i.e. require states to change internal structures, to establish mechanisms that are traditionally part of the domestic affairs of a state. With the rise of “consubstantial norms”, i.e. norms that exist both in the international as well as the national legal realm and that are in essence identical in substance, the relationship between domestic and international law might require new approaches to conceptually capture this development and transcend the traditional dichotomy between national and international law. If such approaches are to bear a practical outcome, then the first step must be to create a consciousness amongst not only scholars, but also practitioners. And a first step to creating such a consciousness would be through teaching: the approach to any given legal problem is largely determined through training (a recent discussion on the relationship between legal education and scholarship can be found here). What we teach, and how, is thus significant also for how discourse is shaped in the future. In our view this is one important argument why teaching is not something that ought to be done “on the side”, next to “research”. Rather, teaching is an integral part of our activities as researchers and ought to be seen as such. Continuing the conversation on what we teach and how we teach it beyond borders then has the potential to evolve into a conversation also on structural commonalities and differences of various legal systems, a conversation that in an increasingly interlinked world also increases in importance. Future teachers of international law should be well aware of those aspects.
Mirka Möldner is a research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.
Hannah Birkenkötter LL.M. is a research assistant at Humboldt University Berlin, Chair for Public Law and Legal Philosophy (Prof. Dr. Christoph Möllers, LL.M.)
Cite as: Hannah Birkenkötter and Mirka Möldner, “The future of teaching international law”, Völkerrechtsblog, 19 May 2014, doi: 10.17176/20170104-161500.