International Law in National Schools

Indiana Law Journal Volume 92 Issue 4 Article 4 Fall 2017 International Law in National Schools Ryan M. Scoville Marquette University Law School, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the International Law Commons, and the Legal Education Commons Recommended Citation Scoville, Ryan M. (2017) "International Law in National Schools," Indiana Law Journal: Vol. 92 : Iss. 4 , Article 4. Available at: https://www.repository.law.indiana.edu/ilj/vol92/iss4/4 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. International Law in National Schools * RYAN M. SCOVILLE Why is international law ineffective at times in achieving its aims, such as preventing human rights abuses, forestalling armed conflict, and ensuring global cooperation on matters ranging from the environment to nuclear proliferation? This Article offers original empirical research to suggest that an important and underappreciated part of the answer lies in legal education. Conducting a global survey on the study of international law at thousands of law schools in over 190 countries, the Article re- veals significant cross-national disparities in the pervasiveness of international legal training, and draws on other research to highlight similar variations in instructional quality, topical emphases, and ideological orientation. The central claim is that these conditions are likely to inhibit the efficacy of international law. In states where training in international law is widespread, rigorous, and supportive of the discipline, universities may contribute materially to norm awareness, utilization, and even obedience over the long run. But in the significant number of states where training is unavailable or limited, poor in quality, or critical of global norms, universities plausibly generate a neutral or opposite effect. More- over, the fact of cross-national variation in these conditions likely imposes a systemic limit on the coherence and value of international law. This analysis suggests an ex- pansive research agenda for scholars and may carry important implications for U.S. law schools, as well as universities and foreign ministries around the world. INTRODUCTION ..................................................................................................... 1450 I. GLOBAL VARIATIONS IN INTERNATIONAL LEGAL EDUCATION ......................... 1456 A. PERVASIVENESS ..................................................................................... 1456 B. QUALITY ................................................................................................. 1466 C. EMPHASIS AND IDEOLOGICAL ORIENTATION .......................................... 1467 II. THE INFLUENCE OF LEGAL TRAINING ON LAWYERS ........................................ 1470 A. THE EVIDENCE OF INFLUENCE ................................................................ 1471 B. THE MECHANISM OF INFLUENCE ............................................................ 1474 1. CENTRAL-ROUTE PROCESSING IN INTERNATIONAL LEGAL EDUCATION ............................................ 1475 2. ATTITUDE CHANGE UNDER CENTRAL-ROUTE PROCESSING .......... 1479 3. THE BEHAVIORAL EFFECTS OF ATTITUDE CHANGE ...................... 1482 III. THE INFLUENCE OF LAWYERS ON THE STATE ................................................. 1484 A. THE CONVERSION OF PROFESSIONAL IDEOLOGY INTO STATE POLICY ... 1485 1. LAWYERS AS GOVERNMENT OFFICIALS ......................................... 1485 2. LAWYERS AS ACTIVISTS ................................................................ 1489 3. LAWYERS AS PRACTITIONERS ........................................................ 1492 * Associate Professor of Law, Marquette University Law School. J.D., Stanford. For helpful comments on earlier drafts, sincere thanks to Jessica Clarke, Melissa Durkee, Jean Galbraith, Ian Hurd, Michael O’Hear, Chad Oldfather, Anthea Roberts, Christopher Roberts, Irene Ten Cate, and participants in the American Society of International Law’s Midwest Interest Group Workshop, Midyear Meeting, and International Law in Domestic Courts Interest Group Workshop. 1449 1450 INDIANA LAW JOURNAL [Vol. 92:1449 4. LAWYERS AS EXPERTS ................................................................... 1494 B. REGIME TYPE AS A MEDIATOR ............................................................... 1497 IV. MERITS AND IMPLICATIONS ............................................................................ 1500 A. MERITS ................................................................................................... 1500 B. IMPLICATIONS ......................................................................................... 1502 CONCLUSION ........................................................................................................ 1507 INTRODUCTION International law addresses an array of foreign and domestic issues, but appears at times to be ineffective. States have committed inter alia to honor free speech, fight transnational crime, protect the environment, and refrain from the offensive use of force, but reports of significant violations are not uncommon. Russia invades Ukraine.1 North Korea tortures prisoners.2 The Syrian military violates a long- standing prohibition on the targeting of civilians and civilian infrastructure.3 China makes unfounded maritime claims in the South China Sea.4 And even in the West, respect for human rights is far from complete.5 Scholars have offered a number of explanations for this state of affairs. Some point to the absence of centralized enforcement as a major contributor. On this view, international norms are at times ineffective because there is no supranational government with power and authority to force compliance.6 In contrast, others have argued that domestic political conditions play a part—in states where there is no internal rule of law, leaders are less likely to respect external legal constraints on their behavior.7 Still others contend that inadequate financial and informational resources limit the capacity of states to honor international obligations,8 or that major international institutions feature design defects that compromise the perceived legitimacy of the 1. David M. Herszenhorn, Fears Rise as Russian Military Units Pour into Ukraine, N.Y. TIMES, Nov. 13, 2014, at A5. 2. Comm’n of Inquiry on Human Rights in the Democratic People’s Republic of Korea, Rep. of the U.N. Human Rights Council on its Twenty-Fifth Session, ¶¶ 60, 62, U.N. Doc. A/HRC/25/63 (Feb. 7, 2014). 3. Indep. Int’l Comm’n of Inquiry on the Syrian Arab Republic, Rep. of the U.N. Human Rights Council Thirtieth Session, U.N. Doc. A/HRC/30/48 (Aug. 13, 2015). 4. U.S. DEP’T OF STATE, LIMITS IN THE SEAS, NO. 143, CHINA: MARITIME CLAIMS IN THE SOUTH CHINA SEA (Dec. 5, 2014), http://www.state.gov/documents/organization/234936.pdf [https://perma.cc/44L5-RS5A]. 5. See generally AMNESTY INT’L, REPORT 2014/15: THE STATE OF THE WORLD’S HUMAN RIGHTS (2015) (documenting rights violations around the world, including in the West). 6. See Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitu- tional Law, Public Law, 122 HARV. L. REV. 1791, 1824–26 (2009) (summarizing this argument). 7. E.g., Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT’L L. 503, 510 n.13 (1995). 8. See generally ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH INTER- NATIONAL ENVIRONMENTAL ACCORDS (Edith Brown Weiss & Harold K. Jacobson eds., 1998). 2017] INTERNATIONAL LAW IN NATIONAL SCHOOLS 1451 contemporary order.9 These are important contributions, but they are also incomplete as explanations of state behavior. The purpose of this Article is to explore international legal education as an additional determinant of the efficacy of international law. I make two basic claims. First, the study of international law varies widely among different parts of the world. Con- ducting a global survey of curricula at thousands of law schools in over 190 countries, I reveal drastic fluctuations in the pervasiveness of international legal training among national jurisdictions. In some countries, all students must study international law prior to joining the legal profession, in others training is optional, and in still others it is simply unavailable. These findings dovetail with other research suggest- ing that training also varies cross-nationally in terms of its quality, topical emphases, and ideological orientation. Together, the evidence suggests that the world’s lawyers learn about international norms in considerably different ways and to wildly different extents. As legal systems go, such conditions are aberrational. A U.S. analogy would be mandatory and ideologically supportive training in federal constitutional law for all lawyers in California and Oregon, with perhaps a heavy emphasis on federalism in California and the First Amendment in Oregon; optional and cursory training on the subject for lawyers in Texas; no exposure for any lawyers in New York; mandatory coverage in Kansas with an unwaveringly communist ideological bent; and pervasive training in Indiana from an Islamic perspective. While variation in the domestic con- text is not altogether absent,10 international law curricula diverge globally

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