International Law Ten Years Later — On the Ground and In the Academy

by Peter Spiro

You know you’ve reached a certain age when you start saying, “I remember when. . .”

Well, I remember when international law was considered a legal chimera and an academic backwater. Policymakers would take it into account in only a limited set of circumstances, and then usually only where it was consistent with other agendas. In law schools it was ghettoized: schools understood they needed one member of the faculty to cover international law courses, but at many it was only one. Among the international relations theorists, international law was the target of ridicule (“epiphenomenal,” delivered with a heavy dollop of condescension).

Things had begun to change around the time that I joined the blog in 2006. One sign of change was a new wave of entry-level international law faculty, among whom Chris, Peggy, and Julian prominently counted. International law felt like the academic equivalent of a start-up, and Opinio Juris was there, helping to build the community of international law academics (something reflected in our impressive list of alumni guest contributors). There was a time when it was required reading among IL scholars. The blog helped demonstrate international law’s relevance on a day-in, day-out basis.

In those early years, I felt like blogging here was part of that cause – to prove the reality of international law against a stolid cohort of non-believers, both in and outside of the academy. It wasn’t advocacy in the traditional sense; international law doesn’t always point to progressive (or otherwise “correct”) results. (In any case, one of OJ’s virtues is its ideological diversity.) More in the way of advocacy for the discipline, at a point at which its respectability was still contested.

Today, there’s no longer any real need to engage in that kind of promotional activity. I don’t feel like I have to do the sort of cheerleading that I engaged in my early years here. International law has left its Ice Age behind. It is now arguably the center of the action, both on the ground and in the academy, as it comes to touch every area of law. It is in its take-off phase. Foundations are being built that will have consequences for generations to come. There’s still a tremendous level of instability. Some institutions now in their infancy will crash and burn. But others will survive. Things happening today will be studied by future generations, even if they aren’t necessarily very high-profile in the contemporary imagination. Some institution-builders anonymously at work today will be celebrated only long after they are dead.

The accelerated growth isn’t all upside, even leaving aside the inevitable missteps and false starts that are part of any take-off. In the “be careful what you wish for” department, international law has grown to the point where it’s no longer a unified field. It’s a lot of fields that are starting to go their own way. The number of international law generalists is dwindling; it’s impossible to keep up with developments in fields as diverse as those in domestic law. The level of specialization now makes it tough to talk across specialties. It’s like your first cousins — you have a recent common ancestor and probably spent some time together in your youth, but may more recently have drifted apart. The next generation will likely as not be strangers.

That’s presents a challenge for a blog that remains generalist in orientation. There are times when the debates in the weeds aren’t worth following if it’s not your particular area. Appealing to the larger community gets more difficult.

I’m also old enough to remember when blogging was new (not so old!). As Julian points out, it has changed – much more serious now, less of the breezy sort of pointers and back-and-forth chatter, much of which has moved to Twitter (which itself has started to get more serious). The emergence of other international law-oriented blogs (Just Security and Lawfare in particular) is a testament to that seriousness, as well as another data point evidencing the robust state of the field. In any case it’s been fun to be a part of a project that has seen these things through.

http://opiniojuris.org/2015/01/14/international-law-ten-years-later-ground-academy/

3 Responses

  1. Proving the reality of international law may no longer be necessary, but that only leads to the next question: is international law useful / has it had any positive impact? Two observations:

    1) Academics in international law (with a few notable exceptions) seem to either provide meaningless answers to that question, or don’t understand the question at all. The first group responds by saying, “Of course, just look at all of the work behind the scenes! What would we do without the Universal Postal Union?” This tells us nothing about whether the developing areas of international law are of any value or are desirable. The second group seems to always fall back on an answer relating to the existence of rules that seem desirable, ignoring effects: “Of course international law has had a positive impact. Look at all of these rules we have protecting human rights.”

    2) I am currently a student at a law school with a highly-regarded international law department, and spent a year abroad at a law school with a similarly highly-regarded international law department. At both, it is obvious that the top students do not study international law. This is partially due to the perceived lack of career prospects, understandably. But on top of this, top students tend to turn against international law because the discipline seems to be lacking intellectual curiosity. The fundamental questions go unanswered. It seems as if the faculty that helped to bring international law out of its “Ice Age” are hostile towards the challenge, “Yes, but is that worth anything?” The students that stick with international law must dogmatically accept chapter 1 of every international law textbook, or face constant frustration.

  2. Zack, thanks for the comment.

    1) I think you just need to read the newspaper to see that IL has an impact, now on a daily basis. It’s clearly part of the international discourse now, often with consequences. I didn’t say anything about it always being “positive”, though it often will be. On human rights, look up Beth Simmons review in Democracy of Eric Posner’s book, if you still need convincing.

    2) “The discipline seems to be lacking intellectual curiosity”? I’d be curious what law school you’re talking about — US-located or EU? Among the great things about international law is that you do (if you’re teaching the course properly) have to ask the kind of fundamental questions that are simply assumed in the rest of the law curriculum. No dogmatic acceptance required.

  3. I appreciate the response.

    1) I agree that you never said that the effect of international law is always positive. However, we can’t celebrate the fact that international law is real unless we also prove it is having a positive impact (that is, it is doing a good thing).

    I have read Posner’s latest book as well as Simmons’ review. While this is somewhat off topic, I am unconvinced by Simmons. For example, Simmons states, “A large chunk of the list he presents is not especially costly—a right to privacy, a right to enjoy one’s own culture, women’s right to participate in community activities, to name just a few.” These three rights could each be incredibly costly to provide, of course.

    2) While I will avoid naming the university, as I don’t want to be critical of any specific professor (and I have had great professors at both universities), I attend a law school in the UK, and spent a year at a law school in Asia.

    “Among the great things about international law is that you do (if you’re teaching the course properly) have to ask the kind of fundamental questions that are simply assumed in the rest of the law curriculum. No dogmatic acceptance required.” I agree entirely. However, that hasn’t been my experience with teaching, and other students at both universities share my frustration. We will have one seminar on the foundation of international law, and one or two seminars on the sources. There is little depth to the discussion, and from there students are expected to accept that international law is based on state consent, and that customary law is created by state practice and opinio juris (amongst other matters of doctrine). If a student remains unconvinced, the answer is, “Well this is what the court accepts so that is what we use.”

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.