Teaching International Law
Summary and Keywords
The international law (IL) course offers a unique opportunity for students to engage in classroom debate on crucial topics ranging from the genocide in Darfur, the Israeli–Palestinian issue, or peace processes in Sri Lanka. A well-designed IL course can help students to appreciate their own preconceptions and biases and to develop a more nuanced and critical sense of legality. During the Cold War, IL became increasingly marginalized as a result of the perceived failure of international institutions to avert World War II and the concurrent ascent of realism as IR’s predominant theoretical paradigm. Over the past two decades, however, as IL’s profile has soared considerably, political scientists and students have taken a renewed interest in the subject. Today, IL teaching/study remains popular in law schools. As a general practice, most instructors of IL, both in law schools or undergraduate institutions, begin their course designs by selecting readings on basic legal concepts and principles. Once the basic subject matter and associated reading assignments have been determined, instructors typically move on to develop their syllabi, which may cover a variety of topics such as interdisciplinary methods, IL theory, cultural relativism, formality vs informality, identity politics, law and economics/public choice, feminism, legal realism, and reformism/modernism. There are several innovative approaches for teaching IL, including moot courts, debates, simulations, clinical learning, internships, legal research training, and technology-enhanced teaching. Another important component of IL courses is assessment of learning outcomes, and a typical approach is to administer end-of-semester essay-based examinations.
For more than a century the subject of international law has been taught in law schools and in university and college departments of international affairs, government, and political science. This essay will review the literature (see generally Gamble 1992a; 2000; 2007; Gamble and Joyner 1997; Joyner 1999) and practice of public international law pedagogy. It will identify instructional opportunities as well as perennial and recent challenges. The focus will be primarily, though not exclusively, on the dedicated “international law” course and teaching practices in Anglophone classrooms. Nevertheless, teaching beyond the standalone course and English-language higher education will also be considered (on teaching “beyond the classroom” per se, see Ku 2003). This review will discuss the following subjects in turn: the historical context of international law teaching, the identification of course subjects and textbooks, syllabi, innovative pedagogical approaches, and assessment.
Historical Overview: The Subject’s Popularity and Teaching Approaches
What has been the historical status of international law teaching? What instructional approaches have been employed? How have international law teaching practices in colleges compared to those in law schools? And how have international law-related professional organizations treated pedagogy? As one commentator joked, “International law teaching combines the worst aspects of sex and the weather. Everyone thinks they are an expert; they complain about problems but do nothing to improve the situation” (Gamble 2007:379).
In the first half of the twentieth century, political scientists typically taught international law from a descriptive, doctrinal standpoint: instructors wished their students to learn the substance of “the law.” Issues of causality and social science theory were rarely if ever addressed in undergraduate classes. Though political science professors typically employed a case method teaching approach, they tended to emphasize court decisions per se rather less so than did law professors (American Society of International Law 1914:41–2; on the modern application of the case method, see Zartner 2009). Between the two world wars, international law arguably enjoyed its curricular heyday, with the subject constituting the basis then for many courses in the International Relations (IR) discipline.
In the Cold War period, international law became increasingly marginalized (Ku et al. 1997; Gamble 2007:383) with the perceived failure of international institutions to avert World War II and the concurrent ascent of Realism as IR’s predominant theoretical paradigm. International law’s popularity as an IR curricular subject also suffered as IR became increasingly social scientific in its methodological orientation. Reflecting these disciplinary trends, a comprehensive survey published in 1992 found the teaching of international law “limping along, at best, in departments of political science” (Gamble 1992a:118).
Over the past two decades, however, as international law’s profile has been significantly raised, political scientists and students have taken a renewed interest in the subject (Gamble 2007:383). Moreover, the approach of scholarship and teaching has become more analytic and explanatory: focused on identifying the causes and consequences of laws, often treated as “norms.” Coincident with the rise of Constructivism in IR, as well as increased interest in comparative and domestic politics, some international law teachers have begun to explore the political forces and institutions that foster international legal compliance. This trend in pedagogy is perhaps most pronounced in the area of human rights. Most Realist scholars/teachers remain highly skeptical, however, especially when addressing the applicability in wartime of international humanitarian law and human rights norms. International law reflects power and interests, argue the Realists, exactly what international law should do (Morgenthau 1978; Goldsmith and Posner 2006).
Important international legal developments have commanded scholarly attention, including the 1998 Rome Treaty of the International Criminal Court (ICC), the arrest of Augusto Pinochet and the subsequent House of Lords decision that the former Chilean dictator could be extradited from England to Spain; the increasing relevance of public debates on international criminal laws prohibiting torture and protecting human rights in the war on terrorism; and the rise in importance of the tribunals for the Law of the Sea and the World Trade Organization (WTO). Though international law has proven an increasingly popular subject for IR teaching, instruction and research have become far more theoretically oriented than in the past (Powell 2008).
In law schools over the past century, the popularity of international law teaching/study has remained relatively constant. Gamble’s comprehensive 1992 study, for example, found that “the contemporary law student [was] only slightly more likely to have taken the introductory course in international law than his counterpart in 1912” (Epps 1993:688). A signal event in law school-based international legal education was the establishment in 1906 of the American Society of International Law (ASIL), an organization that included both practitioners and academic members and that sought to promote education as a central element of its mission (www.asil.org/mission.cfm). Various international law teaching methodologies were historically employed in law schools to address a wide range of substantive areas. Even so, the Socratic questioning, case-based approach was, and has remained, the most common (Gamble 1994; Zartner 2009). Some law professors have recently become less interested in asking questions about cases or the specification of the law, however, and more in analyzing international legal processes outside the contexts of judicial processes (e.g., Hey 2003). These instructors have focused, for example, on the variety of ways that treaties, customary international law, and various transnational legal processes, such as UN treaty-based and Charter-based institutions, have affected the development of soft law and the resolution of human rights claims about violations. Some law professors have also expressed concern lately over traditional international legal instruction’s “theoretical incoherence” and its “depoliticization of the subject matter” (Simpson 1999).
Though the subject has long attracted the attention of academics (Carnegie Endowment for International Peace 1913; American Society of International Law 1914; Edwards 1963; 1965; Hey 2002), the last two decades or so have witnessed a marked increase in discussions about international law pedagogy (Gamble 2007). The American Society of International Law, for example, established and has maintained an interest group on teaching (www.asil.org/interest-groups-view.cfm?groupid=31). The International Law Association (ILA), meanwhile, created and has similarly maintained a committee on the Teaching of International Law (www.ila-hq.org/en/committees/index.cfm/cid/1009). During her presidency of the Society, Anne-Marie Slaughter established an ASIL Teaching Initiative that convened two workshops in 2004: in April in Washington, DC and in August in Potsdam. Both events reportedly were “successful, drew good attendance, and discussed a wide range of issues important to teachers from the content of examinations, information age teaching techniques, to the place of international law in the curriculum” (Gamble 2007:380). In March of 2008, moreover, two Teaching of International Law roundtables were held at the International Studies Association’s annual conference in San Francisco. Despite such important recent activities, John King Gamble has compellingly argued that the major professional associations have not “taken seriously” the teaching of international law, but should do so (2007:384–5). As one of the most prominent modern authorities on the subject, Gamble cannot be disregarded. (Other particularly noteworthy scholars include Paul Diehl, Christopher Joyner, and Charlotte Ku.)
Selecting Course Topics and Associated Curricular Material
Instructional design ideally commences with an identification of desired “learning outcomes”: what substantive materials must the successful student master and what skills must that student acquire? Accordingly, international law teachers often begin by determining which specific topics they wish to address and which texts and other supporting materials they wish to assign (on goals and objectives setting, see Gamble and Joyner 1997 and Hey 2002:193–4; on text selection, see Joyner 2008).
As a general practice, most instructors of international law – both in law schools or undergraduate institutions – begin their course designs by selecting readings on basic legal concepts and principles. Beyond this foundation, the remainder of law school courses is often predominated by doctrine- and case-related readings, at times also including “philosophy of law” and treatments of the relationship between international and national law (Corell 2002:196). Undergraduate Political Science/IR courses on international law and their texts, by contrast, tend to focus more on practical problems than on court cases, whether those of the International Court of Justice (ICJ) or the highest appellate courts of powerful states (Powell 2008; on international law in introductory IR textbooks per se, see Hall 2003). This practical politics-centered approach reflects the (often implicit) teaching goals of many Political Science departments: such departments generally do not seek to train students “to think and act like lawyers,” but rather to understand international law’s relation to politics. A prominent difficulty often encountered by the Political Science instructor early in a given international law course is explaining how unwritten rules may nevertheless constitute genuine international “law.” Instructors may also be challenged to elucidate for students how state power shapes and is shaped by law and to illustrate how cultural identity affects understandings of the international legal system’s nature and operation.
International law teaching of graduate students in Political Science/IR is far more likely than that at the undergraduate level to consider the theory-oriented scholarship of the IR and the International Law (IL) disciplines. Some general textbooks (see, e.g., Barker 2000; Rochester 2006; Armstrong et al. 2007) and compendium volumes (see, e.g., Byers 2000) have addressed this literature. Other works have focused on specific themes such as “International Relations and International Law” interdisciplinarity (Beck et al. 1996; Hathaway and Koh 2005; Simmons and Steinberg 2006; Trachtman 2008) and human rights. For undergraduates, by contrast, the trend in international law textbooks has been to examine examples of state behavior affected by international law; in recent years the presidency of George W. Bush has proven the subject of such attention. Meanwhile, international legal literature has steadily expanded on topics such as international criminal courts, environmental concerns including global warming and pollution of the seas, and the use of force (for examples, see other essays in this compendium).
Instructors of international law surely confront a wide array of basic texts from which to choose. Some law texts, for example, rely on hypothetical scenarios (Weston et al. 1992), an approach appropriate to courses based on experiential learning/role playing (see below). Other such texts may prove prohibitively expensive (Slomanson 2006) for some student populations. Antonio Cassese (2005), meanwhile, offers a non-US perspective on the subject.
A major formal survey of undergraduate textbooks was published in 1970 (Rohn et al.). In 1997, Diehl undertook a review of eight texts suitable for undergraduate instruction: Akehurst (1987); August (1995); Bledsoe and Boczek (1987); Janis (1993); Shaw (1994); Slomanson (1995); Starke (1994); and von Glahn (1996). Diehl found in his 1997 study that most of these texts were not designed to support the case method of law schools, except with limited presentations of case excerpts. All began defensively by explaining that international law was “real law.” They all discussed “states” as the central subjects of international law, but no other chapter topic was shared by all eight texts. The most common chapter subjects were sources, treaties, international organizations, treatment of individuals, territorial disputes, jurisdiction, state responsibility and succession, the law of the sea, use of force, peaceful settlement of disputes, human rights, and air and space law. Arguably the most popular text of the 1990s for undergraduates, von Glahn devoted about a quarter of its lengthy pages to the use of force and war crimes, even though only two of the remaining texts had similar chapters. Human rights were discussed in five of the eight. Half of the texts, Shaw, Akehurst, Janis, and Starke, used the narrative approach. Three of the four, Slomanson, August, and to a lesser extent von Glahn employed the hybrid approach, mixing narratives with case excerpts. Bledsoe and Boczek’s “law dictionary” was perhaps better understood as a brief encyclopedia of terms, phrases, cases and principles with entries averaging roughly half a page each. Besides the UN Charter, few international legal documents were reprinted in these books, thereby necessitating the use by instructors or students of either the internet or a separate documentary collection as a supplement. Most of the texts surveyed by Diehl in 1997 have since been updated significantly: Malanczuk’s Akehurst (1997); von Glahn and Taulbee (2010); Janis (2008); Shaw (2009); and Slomanson (2006).
Other varieties of texts have also emerged. Thomas R. Van Dervort combined two topics, International Law and Organization (1998), while also including several chapters on private international law (business and intellectual property); in addition, the text featured excerpts from cases and two introductory, historical chapters on the effects of the two world wars. James H. Wolfe’s Modern International Law: An Introduction to the Law of Nations (2002) offered 15 chapters in a concise text of under 200 pages, an ideal short version that could be complemented by specialized material. Other noteworthy texts include Bederman (2006), Brownlie (2003), D’Amato and Abbassi (2006), Dixon (2007), Joyner (2005), Lowe (2007), Murphy (2006), Scott (2004), and the classic casebook, Damrosch et al. (2009).
An excellent International Law Video Course was produced by Elizabeth F. Defeis of Seton Hall University in 1995. The course consists of ten 30-minute episodes: Nature and Sources, States, Treaties, International Human Rights, International Organizations, Use of Force, International Dispute Settlement, International Criminal Law, Global Concerns, and International Economic Law. Introducing and concluding each program, Defeis also narrates each segment, which highlights interviews with many leading authorities of the day, including Oscar Schachter, Louis Henkin, Roy Lee, and Rosalyn Higgins, among others. (Roy Lee was the first person from the People’s Republic of China to serve in a high-level UN Secretariat position.)
A recent text of particularly strong appeal for undergraduate teaching is the compilation of International Law Stories (Noyes et al. 2007). Featuring essays by 16 leading IL scholars, Stories sets the most significant international law cases – including Nuremberg, Filártiga v. Peña-Irala, Velásquez Rodríguez, Soering, Foster v. Neilson and United States v. Percheman, The Paquette Habana, Missouri v. Holland, Hamdan v. Rumsfeld, The Caroline, Reparation for Injuries, Nicaragua, LaGrand, and Abu Ghraib – into their social, political, and historical contexts. Written in an accessible form, the essays are organized in three sections: accounts of the development of international human rights law (2007:11–148), ones on the use of international law in the US legal system (2007:149–260), and others about international law’s impact on interstate politics and the global economy (2007:261–434).
Whether in law schools or undergraduate departments, international law instructors have typically buttressed their assigned textbooks with additional materials such as case excerpts, documents, news accounts, and dictionaries of key terms. As Joyner (2008) has observed, “if the professor aims to encourage independent initiative and broaden the realm of study, the selected text should be supplemented.” Such supplemental materials can be readily photocopied (after appropriate permission has been secured) or obtained from the internet. Since no traditional paper textbook, however excellent, can offer unlimited scope or up-to-the-minute treatment of its subjects, readings from newspapers, web-based primary source documents, and scholarly journals can all further a course’s teaching objectives. Nearly 100 journals of international law are published by law schools alone (Joyner 2003:337), along with more than a dozen from the social sciences. These can be used to expose IR students to the scholarship of IL and IR, a rich literature with which they might not otherwise be familiar. Finally, films such as Schindler’s List and Hotel Rwanda may be employed to illustrate vividly the crucial importance of human rights protection and the ethical and practical challenges confronted by international law and institutions (on the use of film in international education, see Waalkes 2003; Dodds 2008).
Once the basic subject matter and associated reading assignments have been determined, instructors typically move on to develop their syllabi. Are there any noteworthy trends in syllabi for international law courses? A review of literature and practice sheds further light on assigned readings and topics, but also on instructor expectations and strategies.
International law course syllabi have been collected in various publications. A classic compilation was done by Rohn et al. (1970). The Academic Council on the United Nations System (ACUNS), moreover, produced a compendium of international organizations and law syllabi in 1995. Two years later, Gamble and Joyner (1997) not only collected syllabi on international law, but differentiated those that assigned casebooks, narrative texts, and hybrid approaches. In addition, Gamble and Joyner surveyed professors on techniques and strategies for teaching 12 different legal problems. They also compiled sample examination questions, including essay style questions from eight leading faculty members and multiple choice style ones from three others.
At the March 2008 International Studies Association conference, Stephanie Carvin presented the results of her comparative analysis of syllabi from six UK-based courses, both undergraduate and graduate, at the University of Sussex, the University of Leeds, and the London School of Economics. All courses focused on “international law” but not all were the dedicated survey course per se. Among Carvin’s principal findings: the courses evinced even more variation in teaching styles than in North America; reading assignments were more lengthy and extensive than those in the US; course topics did not overlap significantly, though the “use of force” and “terror” were most common; the Shaw text was most commonly assigned; and student assessment was typically based on a final exam, thereby rendering the courses arguably less congenial to student creativity (Carvin 2008). Reinforcing Carvin’s final point on European-based international law education, Gerard Tanja contended in 2002 that “law faculties [had] barely stimulate[d] ‘out-of-the-legal-box thinking’” (2002:202).
Syllabi development may prove especially challenging for specialized international law courses. Peter Yu (2008), for example, suggested that an enormous range of options exist for teaching International Intellectual Property (IP) Law. Traditionally, the course has been taught much like IP classes for domestic law, focusing on patents, copyright, trademarks, dress, and trade secrets, which were largely implemented, as with private international law generally, according to domestic legal systems, the choice of which were established under rules of the World Intellectual Property Organization (WIPO). With the advent of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) process, however, the number of legal issues for IP expanded, adding protection for integrated circuits and various biological technology advances, among others. This expansion raises difficult choices for the instructor on topical focus, ones that may ultimately depend on student interest and a school’s geographic location.
Ultimately, given their importance to the IL and IR disciplines, a range of topics beyond cases and doctrine can legitimately be included in the syllabi of international law survey classes. These topics include interdisciplinary methods, international law theory, normative approaches, cultural relativism, formality vs informality, identity politics, international law/international relations, the New Haven School, law and economics/public choice, feminism, legal realism, political science realism, political science liberal institutionalism, critical legal theory, and reformism/modernism. Harvard Law School’s David Kennedy (1985), for example, advocated the incorporation of new topics and approaches for instruction. In an argument paralleling that of his Critical Legal Studies (CLS) colleague, Duncan Kennedy, Kennedy urged that international legal education seek to reveal power’s role in privileging some interests and entities and to question the underlying rationale(s) for given rules’ substance and specificity. International law instructional motifs like these can greatly enhance undergraduate, graduate, and law school students’ learning by challenging their unconscious assumptions and biases and by exposing them to unfamiliar, alternative interpretations and epistemologies.
Innovative Pedagogical Approaches
In the internet era, which has coincided largely with the post–Cold War period, students have become increasingly interested in enrolling in international law classes, and in undertaking international law careers, particularly in international human rights and international criminal law (on careers in international law, see Swartz 2008). This student trend reflects a rise in educational and career opportunities. It also reflects the more sophisticated background of undergraduate and (especially) law students, particularly among immigrants and those interested in globalization and/or in greater opportunities for international travel. Fundamentally, though, students are naturally curious about important international legal innovations like the international criminal court as well as traditional rules and institutions like the more longstanding human rights courts. Students often hear about such judicial bodies but they do not know the entities’ historical contexts or origins.
For contemporary international law students, who have faced an exciting age of information and of legal change and challenge, what “innovative” teaching approaches (i.e., non-lecture-based; see Gamble 1994) have been applied? Among the more noteworthy ones are moot courts, debates, simulations, clinical learning, internships, legal research training, and technology-enhanced teaching. Instructors may choose between these to help advance their courses’ particular learning objectives. Most of these approaches are consciously designed to promote problem-based learning (PBL) in which “the instructor acts as a catalyst and facilitator for learning, rather than as the primary transmitter of information” (Ambrosio 2006:160). All PBL strategies seek to advance student learning through independent learning, problem-solving skills, and student involvement (Ambrosio 2006:161).
For undergraduates, an increasingly popular approach to international law teaching is the moot court (Cady 1967; Gaubatz 1981; Hernandez 1988; Collins and Rogoff 1991; Carlson and Skaggs 2000; Ringel 2004; Ambrosio 2006; Zartner 2009), a teaching strategy that has been routinely employed in law schools. Evincing this rising interest, moot courts were successfully demonstrated – on the topics of genocide, torture, habeas corpus, and the responsibility to protect – in “innovative panels” at both the 2008 and 2009 International Studies Association annual conferences and in the classes of some of the participating professors (Henry Carey the organizer of all four, as well as Dana Zartner and Jennifer Abassi) in their liberal arts classes. Designing and implementing a moot court can prove an exhausting but rewarding enterprise. If the participants complete their required preparations satisfactorily, including writing legal briefs and judges’ decisions, they can become intimately familiar with the area of law involved in their hypothetical cases and well as the criminal or legal procedure of the international court selected for the hypothetical exercise. Undergraduate and even graduate student participants in moot courts will require significant instructor assistance and feedback through all stages of the research and writing processes. Examples of and help with the preparation of outlines and drafts of legal briefs from lawyers, bench memos from judges, and witness statements are part of the pedagogical process.
What factors should instructors consider in designing a classroom-based moot court? Perhaps the most prominent concern is preparation/background. Undergraduate and law students, of course, are not as experienced in legal research, writing, and oral argument as law professors, and even law professors may not be as experienced in formal legal process as many legal practitioners. Political scientists, meanwhile, will generally be less experienced than law professors, and will therefore typically need to undertake more groundwork. Still, for all teachers and students involved in high-quality moot courts, much preliminary work will be entailed. Second, the related choices of legal venue and subject matter are important since these will largely determine the requisite legal research and the nature of legal argumentation. If the ICC is selected as venue, for example, students will need to read cases from the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR) and to argue by analogy. For cases on habeas corpus or genocide, students will confront a scenario in which key terms are arguably not authoritatively defined and for which little or no relevant case law exists. Ideally, the topic of the moot court is timely, but not so current as to be under active consideration by an actual court (Zartner 2009:191). A third consideration in designing a moot court exercise is the treatment of facts. If one merely stipulates the “facts,” the moot court will likely involve fewer participants and less drama but also a closer focus on legal argument. A court case of this sort, in which the facts are not disputed, more closely resembles a debate. If the facts are at issue, witnesses can be examined and cross-examination undertaken, which can increase the number of participating students but also lengthen the duration of the “trial.” (Some scholars have differentiated “moot courts” from “mock trials” based on their treatment of facts, where “mock trials” allow facts to be contested: see Ringel 2004; Ambrosio 2006:161; Zartner 2009:191.) Fourth, instructors must decide the extent to which they wish students to adhere to the court’s formal rules of procedure. If relatively strict adherence is expected, this will likely necessitate a significant time investment by professor and student alike. In the end, a well-prepared trial can last two hours or more, though for less sophisticated or extensively prepared students, 75 to 90 minutes may suffice. Although it will likely reduce the amount of traditional readings that can be assigned and formal lectures that can be presented, the moot court can prove an excellent learning experience for teacher and student alike.
If moot courts seem too labor-intensive or otherwise challenging for one’s students, another related and worthwhile pedagogy option that may be pursued is the use of in-class debates (Joyner 2003). Whether used to teach international law or other subjects, the debate technique “serves to crystallize an issue, presents both sides objectively, and stimulates interest” (American Educators’ Encyclopedia, cited by Joyner 2003:337).
In debates, students do not make arguments in a simulated courtroom context. Even so, they assume defined positions in an adversarial format that addresses matters of international legal consequence. They may still conduct extensive law-related research and writing and may enjoy a professional experience, dressing in formal attire and making serious evidence-grounded arguments before an audience. Students may even play roles in their debates (Joyner 2003:337) and work in teams (Joyner 2003:338). Like moot courts, debates address real-world issues (Ambrosio 2006:160) and can allocate time at the end of the exercise for a question-and-answer session. Nonparticipants in the debate segment can then be permitted to pose questions to the debaters, or even to interrogate them more systematically (Joyner 2003:340). A significant advantage of debates over moot courts is that they demand less knowledge of international legal process and therefore allow students to concentrate more on substantial issues. Accordingly, debates may be especially attractive to the instructors of undergraduates.
Experiential learning of international law need not be confined to moot courts or classroom debates. Instructors of undergraduates and law students have used other role-playing simulations very effectively (Jefferson 1999; Joyner 1999; McCormack and Simpson 1999; Johns and Freeland 2007; Zartner 2009). This problem-based learning strategy has much in common with moot courts and debates. The instructor must undertake a significant amount of pre-exercise preparation. Student engagement in all stages of the classroom exercise (research, the simulation itself, audience participation) is vital to the success of the overall effort. Students may consider a contemporary, real-world problem (e.g., terrorism, piracy, global commons protections), work in teams, wear professional attire, and engage in postevent question and answer. Perhaps the most notable advantage of the in-class simulation is that it may depict a law-related issue or challenge that would not typically be considered by an adjudicatory body but that would nevertheless necessitate an authoritative decision by a government or an international organization. Accordingly, the simulation can be used to highlight the relevance to international law of bureaucratic politics and individual state leaders’ perceptions (Joyner 2003:332–4).
An award-winning, longstanding source of hypothetical scenario-based materials for use in simulation exercises is Teaching Human Rights Online (THRO), a project of the Urban Morgan Institute for Human Rights directed by Howard Tolley, Jr. at the University of Cincinnati. As of July 2009, the THRO Case Library featured nine cases that spanned the globe from Bosnia and Rwanda to Burma and India. Presented in English, French, and Spanish, THRO also provides a very helpful Educator’s Guide (at http://oz.uc.edu/thro).
Clinical Learning: Law School
For law school students, an international law-oriented clinic (Edelman and Pistone 2001; Knechtle 2003) offers one of the most congenial opportunities to operationalize the principles and values that are more typically experienced only second-hand in the classroom, as well as to develop schools or to undertake political work or service. Human rights clinics focus on the dignity that the law imparts to clients, thereby reinforcing the passion of clinicians for their subject. From their on-the-job training, students learn not only international and comparative law, but also the practices and laws of countries other than their own. Teaching opportunities present themselves as students discover the diversity of global perspectives on given law-related issues.
Most international law-specific clinics were established in the mid-1990s, three decades after the practice of clinical education had been introduced at law schools. This delay may be partly attributable to the interpretation of international law by some faculty from a positivist rather than a humanitarian or naturalist perspective. Still, advocates have come to view one proper role for clinics as the creation of pools of lawyers and judges with legal practice skills and understandings of international law from both positivist and naturalist viewpoints. An expansion of criminal tribunals has occurred, thereby offering one type of clinical opportunity. Clinical education requires that universities establish relationships with tribunals and NGOs overseas. The chance for students to consult with clients in weekly conference calls is enormously beneficial; however, one cannot reasonably expect students to file court documents in other countries.
Most clinics are supervised as part of an academic course, thereby connecting theory to practice. Nevertheless, some law school clinics require limited or no dedicated class time. Most offer course credit. Clinics are of two types, ones dedicated to writing legal briefs on new positions and ones to representing individual clients. Administrators must decide whether their clinics are primarily centers of teaching or of service. Teaching centers may or may not be focused on advancing the law or on representing clients on the basis of need. Clinics working on behalf of specific clients typically assign one or two students per case, as part of a course taught by the clinical professor in charge. Usually, a given clinic will assume responsibility for a case from beginning to end – for example, a case in which a refugee applies for asylum or a woman seeks justice for an honor murder.
Prominent law school clinics include: the International Human Rights Law Clinic at American University’s Washington College of Law (www.wcl.american.edu/clinical/inter.cfm); the Clinic for Asylum, Refugee and Emigrant Services (CARES) at Villanova University School of Law (www.law.vill.edu/experientiallearning/clinicsandexternships/caresclinic.asp); and Nova Southeastern University’s Inter-American Center for Human Rights (http://nsulaw.nova.edu/orgs/iachr/index.cfm). Nova Southeastern’s center attempts to involve its students from south Florida in human rights law there, rather than losing such talents to New York and Washington, DC after they graduate. The American and Caribbean Law Initiative (www.fcsl.edu/acli/index.html), meanwhile, includes eight law schools from the US and two from the Caribbean. Its Caribbean Law Clinic operates in the region. In Kingston, Jamaica, students from the participating law schools and their professors work through the Norman Manley Law School, by working on legal issues for the Attorney General and his staff. Georgetown Law Center’s International Women for Human Rights seeks to advance “women’s human rights globally through partnerships with local women’s rights NGOs, as well as through research and scholarship” (www.law.georgetown.edu/clinics/iwhrc/). The clinic enrolls eight students, each of whom must study “International and Comparative Law on the Rights of Women” during or before commencing work. Clinic students have advocated changes in Ugandan domestic law to provide protection orders for women. Student projects have involved proposed legislation, test case litigation papers, and comparative research in 14 countries in several regions on related topics such as treaty law and national laws regulating female genital mutilation and honor crimes, where women are killed for violating sexual norms.
A significant opportunity for international law learning is offered by the internship. Here, the student secures formal placement in an institution – whether local or abroad, public or private – that has particular international legal needs or interests. Law schools have typically played more active roles in promoting such student learning opportunities; nevertheless, undergraduate and graduate political science students should also pursue them. Professors often have contacts and advice on how to obtain these positions, whether through clinical programs or summer placements. The national law schools thus far have dominated efforts to place students in Intergovernmental Organizations (IGOs) like the WTO, the various international criminal tribunals, the Law of the Sea Tribunals, as well as in private law firms that represent foreign clients investing or trading in foreign countries.
Legal Research Training
Within the context of an international law course, students can be taught how to conduct international legal research (Winer 2008), particularly in the current age of information technology (Hoffman 2008). Dedicated class sessions can illustrate how to access electronic information for course-related research, an exercise that is both pedagogically sound and enjoyable. Many students mistakenly believe that because they know how to initiate a basic web-based query using Google and other internet search engines, they have adequate research competence. In fact, undergraduate, graduate, and law students can all benefit substantially from international legal research training by librarians, who also make excellent guest lecturers. (Of course, many faculty members could also benefit from such training.) Student training in international legal research should not be confined to the use of public and commercial indexes and databases, however; they must also be educated in how to evaluate and to apply legal data. Students do not typically fully appreciate, for example, how to differentiate between various potential sources of international law or to assess the relative reputations of authors and publication venues. Among the various themes that merit special emphasis: decisions by international courts are not precedential, in marked contrast to those made by domestic courts in common law countries.
The internet presents an unprecedented boon for international law teaching and research across the globe. All students and faculty with connectivity can now readily access the United Nations Treaty Collection (http://treaties.un.org) at no cost. No longer does one need to wait for publication, translation, or payment processing. New UN resolutions and ICJ cases are almost immediately available, too (see also www.icj-cij.org/ and www.un.org/Docs/sc/). Recent United States cases such as Lawrence v. Texas that have been cited by international tribunals can also be read online (see, e.g., www.supremecourtus.gov/opinions/opinions.html). The challenge for the teacher of international law is to ensure that students exploit this wealth of information and that they are not overwhelmed by it.
Technology has surely transformed the ways in which international legal research can be conducted, and may be taught. It can also enrich problem-based learning of international law by providing a rich array of resources upon which both students and teachers may draw, the THRO web site constituting perhaps the most prominent example. As Gerard Tanja (2002:207) has observed, “it is essential and indispensable for ‘learning’ purposes to familiarize the student with such tools.” In what other ways, though, can technology enhance international law teaching?
The recent advent of internet-based, free or relatively inexpensive videoconferencing tools presents a tantalizing opportunity. Here, technology can be used “to bring together students and teachers from various places around the world in a virtual classroom, thereby making that classroom a more accurate reflection of the multicultural and otherwise diverse world in which our students are working” (Hey 2002:191). Notwithstanding this exciting prospect, IP-based videoconferencing is only beginning to be effectively exploited by international law teachers, however.
Another promising application of technology to the pedagogy of international law is the “hybrid” or “blended” approach to course delivery. This approach to instruction, which features both traditional face-to-face and internet-based elements, has proven increasingly popular across multiple disciplines (Bonk et al. 2006). In hybrid courses, a significant portion of the learning activities has been moved online, and time traditionally spent in the classroom is reduced but not eliminated (Dziuban et al. 2004:2). Furthermore, in hybrid learning “the Web-based and face-to-face components of the course are designed to interact pedagogically to take advantage of the best features of each” (LTC 2009). In a 2009 paper for the International Studies Association’s annual conference, Robert Beck described his own experience of teaching international law as an undergraduate hybrid course, employing video podcasts, streaming video, online discussion, and other instructional materials featured in a “Course Management System” (CMS). Though he discussed at some length the technological tools and approaches he used, Beck (2009) argued that the “teaching of blended courses should be driven fundamentally by considerations of pedagogy, not technology.” The hybrid model may prove attractive to instructors, many of whom agree that “direct contact between student and teacher…remains irreplaceable” (Hey 2002:191).
Despite its promise for education, technology is no panacea. Students must actively engage their curricular material, however and in whatever form it is delivered to them. The teaching of traditional critical thinking skills, meanwhile, must be assiduously fostered. When employed in a careful and disciplined fashion, technology can help to advance such skills. Of course, one of the signal qualities – and values – of any well-conceived international law course is its capacity to foster in students such capacity for critical thought and analysis.
Assessment of learning outcomes merits the close attention of educators (Gamble and Joyner 1997). In law schools, a typical approach is to administer end-of-semester essay-based examinations as the sole means of assessment. In undergraduate and graduate social sciences, a broad spectrum of approaches exists. These options range from the law school-style single exam approach to “low stakes” weekly online quizzes. Particular assessment questions can range from the highly interpretive and reflective (“To what extent may a ‘responsibility to protect’ be said to exist?”) to the highly specific and objective (“What was the nationality of the vessel with which the SS Lotus collided?”).
In designing assessment strategies, international law instructors should keep in mind a number of factors. One practical consideration is workload: teachers do not have infinite amounts of time to devote to student assessment. Accordingly, pragmatic decisions must be made to balance assessment efficacy with temporal constraint. Another consideration is the nature of the student population to be assessed. International law teachers must adjust their expectations to the educational levels of their students: less will typically be expected of undergraduates than of law or graduate students, for example. Arguably the single most important consideration is ensuring that the selected technique actually assesses the student learning outcomes that the course seeks to achieve. Does the instructor wish students to master facts? A brief, traditional quiz can effectively assess such mastery. Should students be able to apply legal principles from actual cases to hypothetical scenarios with novel fact patterns? Here, essay questions may be the most effective means of assessment. Does the instructor wish students to be able to work within teams? To conduct sophisticated legal research? To present legal arguments orally in public settings? In these instances, assessment based on problem-based learning exercises like moot courts, debates, and simulations may be most appropriate. What of critical thinking skills? Global citizenship? Writing assignments and online and face-to-face discussion can be productively employed to assess these areas. (On global citizenship as a goal, see Hall 2008.)
The international law course provides a legal lens through which students may view the world and its many opportunities and challenges. It offers the occasion for classroom debate on such crucial topics as the Israeli–Palestinian issue, the genocide in Darfur, or peace processes in Sri Lanka. A well-designed course can illumine the political dimensions of law, and the legal dimensions of politics. It can also help students to appreciate their own preconceptions and biases and to develop a more nuanced and critical sense of legality. As Rosalyn Higgins has suggested, one of the distinctive qualities of international law is that all merit does not lie on one side or the other of any given argument. This is an essential recognition that goes hand in hand with the modern professors’ charge of globalizing the curriculum. Of course, the objective of expanding knowledge of the globe and of the rules governing it has been a longstanding one: the first article published in the American Journal of International Law, by US Secretary of State Elihu Root, was entitled “The Need for Popular Understanding of International Law” (1907, cited by Gamble 2002:213).
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Links to Digital Materials
Teaching Human Rights Online. At http://oz.uc.edu/thro, accessed July 27, 2009. A project of the Urban Morgan Institute for Human Rights directed by Howard Tolley, Jr. at the University of Cincinnati. Recognized as “The Best Political Science Website for 2001” by the American Political Science Association Information Technology and Politics Section. The Case Library provides abstracts of nine currently available cases which span the globe, from Bosnia and Rwanda to Burma and India.
Electronic Information System for International Law (EISIL). At www.eisil.org/, accessed July 27, 2009. With the support of the Andrew W. Mellon Foundation, developed by the American Society of International Law (ASIL). ASIL’s objective is that EISIL will allow web searchers easily to locate “the highest quality primary materials, authoritative web sites and helpful research guides to international law on the Internet.” EISIL has been designed as “an open database of authenticated primary and other materials across the breadth of international law, which until now have been scattered in libraries, archives and specialized web sites.”
ASIL Electronic Resource Guide (ERG). At www.asil.org/erghome.cfm, accessed July 27, 2009. Published online by ASIL since 1997, this guide has been systematically updated and continuously expanded. ERG’s chapter format “is designed to be used by students, teachers, practitioners and researchers as a self-guided tour of relevant, quality, up-to-date online resources covering important areas of international law. The ERG also serves as a ready-made teaching tool at graduate and undergraduate levels.”
Teaching International Law group, American Society of International Law. At www.asil.org/interest-groups-view.cfm?groupid=31, accessed July 27, 2009. The Teaching International Law Interest Group provides a forum for those involved in or interested in teaching international law to discuss approaches, methods, and new techniques being employed both in the United States and abroad. The group operates under the premise that effective teaching leads to increased public awareness and a greater understanding of international law. Although innovative new practices are often highlighted, standard approaches are also examined in order to keep them fresh and effective. The group has recently addressed topic areas such as curriculum and pedagogies in both doctrinal and nondoctrinal courses, requiring international law courses, infusion curriculum, and international law certificate programs within the Juris Doctor (JD) program. The group addresses these topics through discussions and workshops, as well as through cosponsorship of international conferences.
ALIAS – Active Learning in International Affairs. At http://sitemaker.umich.edu/alias.isa/home, accessed July 27, 2009. The website of the ALIAS section of ISA, a group providing “a forum for exploring active learning approaches to teaching international affairs. These approaches include, but are not limited to, case studies, simulations, games and role play, service and service learning, study abroad, film, and interactive technology.” This website features a web archive (requires section membership to log in), section newsletters, and section minutes.
International Law Association (ILA) Teaching of International Law Committee. At www.ila-hq.org/en/committees/index.cfm/cid/1009, accessed July 27, 2009. This website of the ILA’s Teaching of International Law Committee features committee news, events, and documents. It also provides contact information, a list of committee members, and a link to the committee’s forum (log-in required).
Audiovisual Library of International Law – Lecture Series. At http://untreaty.un.org/cod/avl/lectureseries.html, accessed July 27, 2009. Hosted and prepared by the Codification Division of the United Nations’ Office of Legal Affairs, this Lecture Series “contains a permanent collection of lectures of enduring value on virtually every subject of international law given by leading international law scholars and practitioners from different regions, legal systems, cultures and sectors of the legal profession.”