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Tuesday, October 10, 2006

Research Canons: International Law

Our next subject matter for the research canons project is International Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Patrick O'Donnell has contributed a very extensive bibliography, downloadable here.

A post by Duncan Hollis at Opinio Juris  on canonical international law cases can be found here.

UPDATE: In addition to his comments below, Peter Spiro's thoughts on an IL canon can also be found here.

Posted by Matt Bodie on October 10, 2006 at 11:01 AM in Research Canons | Permalink

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It's surely too new to count as "canonical" but the best philosophical book on the subject for several years is probably _Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law_ by Allen Buchanan. A shorter version of the argument of the book can be found in the article by Buchanan and David Golove, "Philosophy of International Law" in the Oxford Handbook of Jurisprudence edited by Colman and Shapiro.

There is a lot that seems to me outdated in Hans Kelsen's classic _Principles of International Law_ but it's still pretty useful in some ways and was a basic text. Chapter X of Hart's _The Concept of Law_ on international law is also still a much clearer discussion than is often found of international law.

Posted by: Matt | Oct 10, 2006 11:46:47 AM

In terms of canons, I'd say you need to have Ian Brownlie's Principles of Public International Law (6th ed. 2003), not because it's an easy read (it's not), but because all other English-speaking international lawyers have it and will look at it. I'm also fond of Oppeneheim's International Law, but actually prefer the magesterial 8th edition by Sir Hersh Lauterpacht, although the Jennings and Watts 9th edition is quite useful as well. In terms of introductory texts, I usually turn to Akehurst's Modern Introduction to International Law first, and then supplement with Antonio Cassese, International Law (2d ed. 2005) or Malcolm Shaw's International Law (4th ed. 1997).

Posted by: Duncan Hollis | Oct 10, 2006 12:06:18 PM

Patrick O'Donnell intentionally left out historical works on international law. It won't take much to fill that gap.

1) The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Hersch Lauterpacht Memorial Lectures) by Martti Koskenniemi

This is the first account of international law as a collective endeavour among professional practitioners (though many of these names-- Martens, Lauterpacht, Kelsen-- are cited primarily as theorists today.)

2) International Law in Historical Perspective, by Jan Hendrik Willem Verzijll.

This is a multi-volume set available in most law libraries, sticking close to traditional doctrinal materials.

3) The Epochs of International Law by Wilhelm G. Grewe.

Prof. Michael Byers translated this classic one-volume edition into English. It contrasts with Koskenniemi in its broad focus on world-historical events and hegemonic powers of the various periods. It is inclusive of a great number of notions and epistemic shifts in what it means to call law "law."

4) Peace Treaties and International Law in European History: From the Late Middle Ages to World War One by Randall Lesaffer

This book follows the Grewe approach bit with a narrower focus on bi-lateral treaty practice.

5) International Law in Antiquity (Cambridge Studies in International and Comparative Law) by David J. Bederman

This book does a wonderful job of tracking analogies as well as continuities between practice in antiquity and modern IL.

6) The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant by Richard Tuck

Focus on the Scholastics, Grotius, Hobbes, Locke, Rousseau, and Kant. very much an intellectual history, but a nice inter-disciplianry starting point for IR and IL theorists as well as hsitorians.

7) Human Rights and the End of Empire: Britain and the Genesis of the European Convention by A. W. Brian Simpson.

An ambitious undertaking. An almost too-detailed account of the beginnings of the univeral and European human rights systems in the 20th century. Very relevant in its coverage to continuing debates about states of emergency, human rights law, humanitarian law, and lex specialis.

A couple of notes.

For purposes of canonization, I feel the need to exclude otherwise well-regarded works such as The Shield of Achilles: War, Peace, and the Course of History by Philip Bobbitt, and No Virtue like Necessity: Realist Thought in International Relations since Machiavelli by Jonathan Haslam, because they give very little coverage to even the broadest self-understandings of international law as a practice.

There are a few more personal favorites that I would reserve from canonization, because they are primarily of interest to specialists. I have included some of these in a Listmania list on amazon.com if you are interested.

Vik Kanwar
Westerfield fellow
Loyola New Orleans School of Law
JSD Candidate, Program in the History and Theory of International Law
NYU School of Law

Posted by: Vik Kanwar | Oct 10, 2006 1:30:07 PM

I noticed a typo in my bibliography: Please read 'Mieville, China. Between Equal Rights...'

Incidentally, although the compilation lacks a *strong* historical orientation, it does include several of the titles mentioned by Vik Kanwar above (not meant to detract from my gratitude for his filling things out here).

Posted by: Patrick S. O'Donnell | Oct 10, 2006 2:19:59 PM

I suggested a few months ago over at Opinio Juris that international lacks a canon, and nothing I'm hearing here suggests otherwise.

Sorry if someone else has come up with this, but one might think of this exercise along the lines of the game Humiliation in David Lodge's novel Changing Places. Each player names a work of literature they haven't read, and earns a point for every other player who's read it. (In the novel, Hamlet is the winning entry in the game, but the winner ends up being denied tenure as a result.)

I'm not sure what would be a big point-scorer in Humiliation - the IL version. I think anyone on the job market or a junior IL prof should be familiar with the work of Harold Koh and Anne-Marie Slaughter, and best have at least passing familiarity with some IR theory; Chayes & Chayes, The New Sovereignty might also be on the list as a single work. (Speaking of Abe Chayes, his The Cuban Missile Crisis is a wonderful book in the old school, though not widely read enough to be deemed canonical). If specializing in foreign relations law, they should know the work of the major players in recent debates starting with Bradley & Goldsmith and going forward from there, and everyone should have Henkin (1st edition, not 2d) on their shelf. I think the question will be more easily answered a generation from now; the field is too fluid at the moment to have much in the way of mandatory reading.

Posted by: Peter Spiro | Oct 10, 2006 3:25:31 PM

From Patrick O'Donnell's earlier disclaimer I assumed too quickly that his list would not be all-inclusive. Of course, it turns out that these books were listed. Patrick proves to be as thorough as ever. Good start on a canon I say; at least two of us agree.

I agree also with Professor Spiro's comments on the current fragmentation as a barrier to canonization. Unless you are a polymath (in which case you have already read everything on the O'Donnell list) much will be decided on the level of where you went to school, what you were assigned to read, and the attitudes on IL current there. My own list is influenced by a segment of NYU, or as others of you might call it, "Europe." Prof. Spiro's examples of even the most obvious candidates is certainly more "American" in orientation-- but that's only the beginning of deeply felt divisions, which we can barely even caricature effectively anymore. (Still, its always fun to try: Harvard might turn you into an insecure or chastened activist or else a playful critical theorist. At NYU, you might learn how to become comfortable in your skin as an international lawyer, and then maybe move to Europe. At Chicago, you learn that the content of international law depends on outcomes and economic models of efficiency. Yale used to be about policy, but now its empiricism, etc.) Notice that except for the older New Haven approach, none of these approaches should inspire much confidence in American students/lawyers in seeing international law as a viable profession or a vocation. (A quick plug: I have probably gotten more of a feel for the overlapping points of view of new American IL scholarship from Spiro et al. in their blog Opinio Juris than from three specialized law degrees in the U.S. and countless ASIL events).

Still, if you want to teach international law as a vocation, as a practice, to second and third year law students in the U.S., you have to take into account a world where the status and coherence of this practice will constantly be shifting beneath them. It doesn't help much if what we're selling them in law schools is attitudes towards international law, rather than the materials they might need in practice. A specialist in any other field would be able to identify a layman by their use or misuse of professional language, or violation of professional codes. The fragmentation of international law has the effect of revolving fashionable frameworks and attitudes (often attidudes external to the practice) being all you have to identify yourself as a specialist in internaitonal law, though less and less as an "international lawyer." We're losing a sense of professional language, the value of our own concepts, and before we can identify a canon, we have to have a minimal commitment to developing a professional language, and teaching students to think like lawyers rather than as political scientists, journalists, etc.

I almost gasp when I see myself write "think like lawyers" because I'm among those who was drafted into legal academia by Duncan Kennedy's legendary piece of propaganda and pedagogy called “Legal Education as Training for Hierarchy,” the little red book, which effectively demystified and continues to describe the ideology of “thinking like a lawyer” that is inculcated in insecure first-year law students. But by contrast, we should probably think of International Law (the survey course and the whole thing) as training for "heterarchy.” By this term I mean to recognize that international law lacks a uber-text as much as a super-sovereign (with apologies to champions of the UN Charter on both accounts). So learning international law is necessarily different from learning tax law or civil procedure or even constitutional law. With tax law there are undoubtedly normative issues, but these are policy issues about what should be in the tax code. They have almost nothing to do with the formalism of the interpretation of the tax code itself. Civil procedure is a map. Constitutional law would seem similar in man respects, but you have to accept the constitution, the hierarchy and pedigree of a particular document, and you have to accept the system to work within it. Comparative constitutional law, you need to accept the contingency of various systems. In international law, we encounter deeper issues of contingency than any realist critique could level against us, but as law professors, we use the shifting contexts of of state sovereignty and sources in the various contexts of professional practice. First day of class. The textbook question: "What is international law?" Lets give a gold star to the first smart-aleck kid who answered the textbook question with the smart-aleck answer. Yes, "international law is what international lawyers do."

Posted by: Vik Kanwar | Oct 11, 2006 12:34:26 AM

I'm late on this, but I agree with Peter - I'm not sure how well I know those canonical works that restate public international law! Anne-Marie Slaughter and Harold Koh have really set the grounds for debate, and I'm pretty sure we'd have to add Goldsmith and Bradley on customary international law to the plate of anyone who wants to engage with the big recent debates.

Since this really doesn't add anything to Peter's post, I'll note that the heterodox nature of IL methodology, not to mention the varieties of ways it is talked about - as a new form of making essentially domestic regulation, as the law governing states, or in any of its specialized subfields, such as trade - makes narrowing the required reading difficult.

Posted by: David Zaring | Oct 11, 2006 7:08:08 PM

Could you, please, suggest any litrature on the internaitonal regulations of FDI (foreign direct investments)? I am doing PhD in Political Science and trying to figure out if there are any data (agreements collections, etc) on the international regulations of FDI.
Thank you in advance,
Ta

Posted by: Ta | Oct 18, 2006 2:42:34 PM

I've now updated the compilation for international law if anyone is interested.

Posted by: Patrick S. O'Donnell | Dec 24, 2007 10:07:56 AM

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