International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2009 Issue








Why Judges Should Know (More) About International Law

Dr. James G. Apple When I was enrolled in a graduate law program at a university in Europe in the late 1980s, seeking a Master of Laws (LL.M.) degree, I entered the international law world as a novice. When in law school in the early 60s in the United States, international law wasn't even offered as a subject in the law school curriculum. There were two courses that dealt parenthetically with international legal matters. One was a one-semester course on international legal transactions, and the other was a seminar on law and foreign policy. I took both of them in my last year of law school. But I was completely unexposed to public international law or private international law, and that was the status quo for me for the next twenty-five years.

When I returned to law school after those twenty-five years, I did so with the objective of remedying the gap in my legal education. I spent a lot of time in the faculty of law library that year. As I became more acquainted with some of the corpus of international law principles and practices, I wondered why more of this important and fascinating body of law was not better known in the world. Why didn't I read more about international law in the newspapers, and in books and commentaries on current international events. I remember distinctly one day when I was wandering among the stacks in the library, a significant thought occurred to me. One of the problems with international law was that it was too much confined to the bookshelves of law libraries and the lecture halls of university law schools. No one wrote about international law in the popular press because journalists probably did not know of its existence, or if they did, they were basically unfamiliar with its contents. Certainly a vast majority of citizens of the United States, and probably those in many countries around the world, didn't know about, or much about, international law either.

Since founding the International Judicial Academy in 1999, and since starting the Sir Richard May Seminar on International Law and International Courts, a popular Academy program held annually in The Hague, I have come to realize that the same ignorance which I felt about international law for twenty-five years was pervasive among the U.S. judiciary. Many (most) judges in the United States know very little, if anything. about international law, and they know even less about international courts. These observations have been confirmed in the evaluations of the four international law seminars the Academy has conducted in The Hague beginning in 2005. The reason for this absence of knowledge is probably due in part to the same cause of my earlier ignorance, little or no exposure to it in law school. It is also probably due to the fact that international law is not on the radar screen in U.S. law offices (except in those firms that practice some form of international law), or in U.S. courtrooms.

Upon my realization that international law is not a subject of much interest to judges and lawyers in the United States, I pondered the question: what can be done about this situation? The answer that occurred to me was simple: get international law out of the law libraries and halls of academe and into the "market place." The more difficult problem was how to accomplish that relatively simple objective. I realized that a logical starting place is with judges. If judges started knowing something about international law, started realizing that international law can be an increasingly useful tool in resolving disputes, started realizing that more and more cases both in state courts and in federal courts have some international involvement, started researching issues with the idea that international law might supply some answers to legal problems and contribute to judicial enlightenment, and started citing international law in their opinions, then lawyers and journalists and maybe eventually the public would become interested in and begin to have some knowledge about international law and come to realize its importance in the increasingly interconnected world we live in.

In 1945, immediately following World War II, there were basically three kinds of international law: public international law (law of nations) that dealt with relations between states, international humanitarian law (law of war) and a nascent body of private international law. In 2009, there are many kinds of international law in addition to the three previously mentioned: international financial and monetary law, international trade law, international human rights law, international labor law, law of the sea, international environmental law, international criminal law, and international space law.

In 1945 there were three international dispute resolution tribunals in existence: the Permanent Court of Arbitration, the International Court of Justice, and the International Military Tribunal at Nuremberg. Today there are in existence or coming into existence more than 40 international courts and tribunals that are either global or regional in scope and jurisdiction.

With so many types of international law and so many international courts and triobunals in existence or coming into existence, those types of international law and the judgments of those international courts will ultimately, if they haven't already, overflow into domestic legal systems. Such a situation creates one imperative for judges to learn more about international law. But there is also another imperative.

In an essay in the book Culture and International Law (reviewed in this issue of the International Judicial Monitor) A.S. "Sam" Muller of The Netherlands makes the observation that "international law is nationalising and national law is internationalising." He underscores that point with the comment that "there is little point in the Dutch adopting a national banking law that does not take into account the banking laws of states with which the Dutch have large scale commercial dealings, or which violate accepted international standards...".

If national laws and international law are becoming more interconnected, and if national legislators, when drafting new legislation or revising old legislation, have to take into account international law in a number of fields, and since the interpretation and application of those laws ultimately will fall on the courts, then again it seems imperative that judges should learn about international law. And when they learn about international law, and begin considering it and applying it in specific cases in their courts, then more lawyers will be more disposed to read and cite international law in their briefs and memoranda, and journalists who cover court cases will be exposed to specific principles of international law and be more disposed to write about international law, and citizens will then be more exposed to the importance and content of international law. When all of that happens, and it will sometime, then international law will have broken free of the law libraries and halls of academe, spread into the market place, and become a truly important ingredient in the functioning of those institutions and policies by which global society manages itself.

By Dr. James G. Apple, Editor-in-Chief of the International Judicial Monitor and President, International Judicial Academy

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© 2009 – The International Judicial Academy with assistance from the American Society of International Law.

Editor: James G. Apple.
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