Why Teaching International Law in American Universities Matters

International law has a fairly peripheral role in American legal education. At a clear majority of schools, international courses are both exclusively elective and limited in number. And if the major casebooks are any indication, the courses often devote substantial time to a subject (US foreign relations law) that is not part of the discipline. These tendencies can affect the attitudes of large classes of law graduates who move on to influence the development and execution of national security policy and US foreign relations as government lawyers, judges, prosecutors, private practitioners, activists, and expert commentators. Recounting his own experience as a student, David Kennedy once explained that the marginal status of international law in his school’s curriculum left him “skeptical about the institutional stature that international law seemed to be claiming for itself” and feeling that the discipline is just a “somewhat special form of the United States municipal legal order.”

Is something similar happening in other countries? Or are American law schools parochial outliers? To answer these questions, I recently completed a project on the geography of international legal education. The goals were, first, to determine whether and how the study of international law varies among different countries and, second, to theorize on the significance of global study patterns, whatever they might be. For the empirical component, I surveyed the frequency with which universities and governments around the world require law students to complete a course on public international law. The results, including summary statistics and details about the curricula of specific schools within each national jurisdiction, are available in the form of an interactive world map at PILMap.org.

The map suggests that American law schools are indeed outliers in one sense: the study of international law is globally pervasive and a compulsory part of legal education at a clear majority of universities around the world. In fact, there are many countries in which every single law student must take at least one course on public international law. With a compulsory training rate of only 4%, the United States plainly departs from this norm. Tables 1 and 2 summarize the findings on a continental basis. 

Table 1

Continent Aggregate Rate of Compulsory Training
Africa 88%
Asia 92%
Europe 70%
North America 43%
Oceania 30%
South America 99%

 

Table 2

Continent Average Rate of Compulsory Training
Africa 84%
Asia 82%
Europe 85%
North America 90%
Oceania 11%
South America 99%

 

To be sure, the United States is not completely alone. As shown in Table 3, compulsory training is uncommon in a handful of other countries, particularly those with common law traditions. It seems fair to assume that comparatively small percentages of students in these states receive basic instruction on topics such as human rights, the use of force, and treaty law, even if relevant electives are popular.

Table 3

Country National Rate
Ireland 0%
Japan 0%
New Zealand 0%
Nigeria 0%
Papua New Guinea 0%
United Kingdom 3%
South Korea 4%
United States 4%
Canada 23%
Ghana 25%

 

International legal training varies cross-nationally in other ways as well. For instance, educational quality is hardly uniform. While law students in the developed world tend to benefit from significant organizational resources, schools in developing states often lack substantial library collections, functional facilities, casebooks in native languages, and full-time instructors. Further, as Anthea Roberts demonstrates in a forthcoming book, training varies in terms of its topical emphases. The law of outer space is a salient part of the curriculum in Russia, for example, but essentially ignored in the United States. It should come as no surprise that law schools also approach international law with different ideological and cultural orientations, whether communism or capitalism, Sharia or secularism. The combined result is a world in which students emerge from law school with different attitudes about the nature and value of the field.

Do these differences matter? In a new article draft, I argue that they probably do. Drawing on evidence from social psychology and political science, I contend that law schools can be effective venues for persuading students to view international law in ways that law faculties have chosen to privilege, and that, once persuaded in one way or another, legally trained professionals are, as a group, sufficiently influential to align state policy with classroom orthodoxy. In other words, law schools materially influence the efficacy of international law over the long run by shaping the attitudes of those who go on to interpret, debate, explain, and apply—or ignore—international norms. From this perspective, the evidence of cross-national variation means that law schools in different states socialize future legal professionals in different ways, and that the various states in which these people reside operate on divergent understandings of and levels of commitment to global norms as a result. To quote from the article’s abstract:

In states where international legal education is widespread, rigorous, and supportive of the discipline, universities will materially contribute to norm awareness, utilization, and even obedience over the long run. In states where training is unavailable or limited, poor in quality, or hostile, university curricula will have a neutral or opposite effect. Moreover, the fact of cross-national variation in these conditions imposes a systemic limit on the coherence and value of public international law. The central claim is that this hypothesis—the “training hypothesis—is reasonable, enjoys substantial evidentiary support, and, if correct, carries significant implications for universities and foreign ministries.

As applied to the United States, the hypothesis suggests that international law’s peripheral role in legal education materially contributes to a professional orthodoxy of skepticism and disregard, which in turn complicates compliance in a range of policy domains. For example, Sandra Babcock has noted that in the decades immediately following US ratification of the Vienna Convention on Consular Relations criminal defense lawyers hardly ever objected to the violation of their clients’ consular notification rights. Why did this happen? Because “few law school graduates understand the relevance of international law in domestic legal proceedings.” Separately, litigants have a positive incentive to avoid raising international arguments before American judges who are unaccustomed to the field’s doctrines and authorities. And in advising agency clients on issues such as surveillance, detention, and a host of other issues, it may simply be easier, cognitively, for government lawyers to disregard or downplay the significance of a body of norms that formal training has persuaded them to view as peripheral and sub-legal. Of course, there will always be a group of well-trained and committed international lawyers in positions of influence, but a lack of knowledge and support within the broader profession makes their job substantially harder. Further, idiosyncrasies in American legal education might complicate cooperation with other states on matters such as non-proliferation and anti-terrorism by generating conflicting assumptions about the content and significance of applicable rules.

The principal takeaway is that university training is quite plausibly a compliance issue. Attitudes about international law don’t simply exist; they must come from somewhere, and it is reasonable to think that at least one of their principal sources is the classroom, which provides the only significant, analytically rigorous, formal training on international law that most lawyers ever receive. If this is correct, national aggregations of nano-choices about curricular design and classroom instruction carry significant policy consequences over the long run, and non-compliance should come as no surprise, given the variegated state of training around the globe. 

About the Author(s)

Ryan Scoville

Assistant Professor of Law at Marquette University