“[L]aw must be viewed today through a global lens, and . . . the way we think about and teach the law must embrace that perspective.”

I. INTRODUCTION

Teach international law to first-year law students? Why?

There are several answers to this question. Perhaps the most practical reason is that international law is becoming so important to our lives as lawyers and educators (and, in fact, to our lives in general) that we can no longer dismiss this idea as one that is controversial or impractical. By introducing students early on to concepts of international law, we teach them that law extends beyond the boundaries of traditional practice, and show them that the law is as diverse as the peoples who create it. The subject matter of such a course can be as far-reaching as the professor’s imagination: international human rights, transboundary pollution, recognition of new states and outer space law are but examples of topics that can be covered.

Teachers of doctrinal first-year courses should be encouraged to incorporate international law into their curricula, and a first-year legal writing program provides an excellent and easily adaptable venue for doing so. An introductory level international law legal writing program should strengthen the school’s international law moot court teams and increase student interest in the school’s international and comparative law curriculum. Most importantly, this alternative offers variety to the first-year law student who is, usually, relegated to the traditional first-year substantive offerings and a traditional legal writing program. First-year law students relish taking control of their academic program, and the availability of an innovative or alternative course that incorporates international law gives students what may be their only chance to elect a course in an otherwise prescribed curriculum.

Although a number of law schools offer three or four-semester legal writing programs, the majority of law schools only offer two-semester legal writing or legal research and writing programs. During the first semester of these programs, professors typically require students to prepare a variety of objective legal office memoranda, which students research and prepare for the purpose of advising a senior attorney regarding what decision to make or advice to provide in relation to a hypothetical legal problem. During the second semester, students move from objective to persuasive writing, and typically prepare one or more briefs to the court and present oral argument before a panel of moot court judges.

Most commonly, and this is still by no means common, international law has been incorporated into the first-year curriculum by means of the typical first-year second semester moot court program. Brooklyn Law School has perhaps the first program of this kind, having introduced international law into the legal writing curriculum in the late 1970’s. Several law schools, including Villanova University School of Law (“Villanova”) and Syracuse University College of Law (“Syracuse”), have also pioneered first-year academic programs that include an international law moot court alternative to the traditional first-year legal writing curriculum.

Using the Villanova program as a model, this Article will focus on the fundamental concepts that must be taught in an international law moot court course, as well as the mechanics of offering and teaching international law moot court as an introductory level legal writing course. In addition, this Article will offer suggestions for integrating international law into the first semester legal writing program as well.

Specifically, Section II of this Article will introduce the sources of international law with which students in a first year “internationalized” legal writing program must become familiar. Section III describes how to select students, develop course materials and provide basic and supplemental instruction for the persuasive writing or moot court portion of the first-year legal writing program. Section IV addresses the relatively more simple task of introducing international law into a typical first semester, objective legal writing curriculum. Finally, Section V concludes that “internationalizing” the first-year legal writing curriculum is not only desirable, but is a necessary goal for preparing today’s law students to be competent professionals in the new millennium.

II. THE SOURCES OF INTERNATIONAL LAW

Why is an international law moot court course so different from a traditional first-year moot court course? Simply put, it is primarily different because of the type of research involved; in other respects, students receive training in persuasive writing and oral advocacy similar to what they would receive in a traditional second or third-semester legal writing course. In addition, there are differences in the forum in which an international law moot court course is set. Rather than using a domestic appellate court, the international law moot court problem is set before a panel of the International Court of Justice (“ICJ”), which, in the real world, sits in The Hague, The Netherlands.

Consequently, the greatest challenge to a law student who elects to participate in an international law moot court program – whether by enrolling in a legal writing course or participating in the Philip C. Jessup International Law Moot Court Competition (“Jessup”) as an upper class student – is mastery of the sources of international law that are applied by the ICJ. Unlike domestic law, where the student must grapple with the constitution-statute-case law hierarchy, the student of international law must become comfortable with treaties as well as the more amorphous concepts of “customary international law” and “general principles of law.” These are the primary sources of international law, just as constitutions, statutes and cases are the primary sources of both federal and state domestic law. When it comes to secondary means for determining rules of domestic law, students in a traditional moot court class look to law reviews, treatises and digests. In contrast, the international law moot court student looks to both scholarly works and case law, both international and domestic, as secondary means for determining rules of international law. Thus, it is crucial for the international law moot court professor to spend sufficient time at the beginning of the semester making sure that students have a comfortable grasp of the following basic concepts before starting their research and writing project.

The sources of international law are defined in Article 38(1) of the Statute of the International Court of Justice (“ICJ Statute”), which lists the sources applied by the ICJ in deciding matters before the court. Although the ICJ Statute does not specifically address whether the sources have a hierarchic value as listed, scholars and the ICJ itself apply the sources in descending order. Students should be made aware that in international law there are both primary and secondary sources of law, just as there are in domestic law. The primary sources include international conventions, international custom and the “general principles of law recognized by civilized nations.” The secondary means of determining international law include the “judicial decisions and the teachings of the most highly qualified publicists of the various nations.” It is also important to remind students that the ICJ does not follow the concept of stare decisis as do domestic courts, so that the ICJ does not regard its own prior case law as binding precedent.

A. Conventions

International conventions or treaties are the sources students most easily comprehend, as students have heard of treaties before, and they are most like a traditional domestic legal device – a contract. Just as a contract codifies the agreement of parties, a treaty memorializes the agreement between two or more states. International conventions bind both the states party to them, and those states that are not parties, but which nonetheless accept their provisions as law. Parties to a convention must abide by the terms of that instrument based on the principle of pacta sunt servanda, namely, that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.” According to Article 38(1) of the ICJ Statute, conventions may be “general or particular,” meaning that they can be bilateral or multilateral, specific or comprehensive. And, although a convention provides the strongest evidence of international law, a convention which seems to contradict or modify established international custom should be interpreted so as to best conform to established custom, rather than deviate from it, unless the convention was intended to change the existing custom. International conventions can also be evidence of established international custom.

B. Customary International Law

International custom, or customary international law, is one of the most widely cited, and yet most elusive concepts found in international law. International custom must be distinguished from what is thought to be a state’s “customary behavior.” For a state’s practice to become binding customary international law, the state must engage in the particular practice because it considers itself legally obligated to do so, rather than out of compassion, convenience or friendship. This sense of legal obligation to referred to as opinio juris sive necessitatis or simply, opinio juris. Generally, a state must also engage in a particular practice for a significant period of time for that practice to be considered binding customary international law. Once a practice has become customary, and thus a recognized form of international law, all states that have not objected to the custom are bound by it.

In addition to those practices recognized by states as customary international law, treaties between various states can also be evidence of international custom. Treaties often codify rules that states believe have become international custom through constant and uniform usage over a long period of time. Evidence of international custom can thus be found by analyzing international conventions and other legal instruments, and determining how these instruments are interpreted and implemented by the various states.

C. General Principles of Law

The final primary source of international law is the “general principles of law recognized by civilized nations.” Nowadays, the phrase “recognized by civilized nations” has virtually become obsolete, in recognition of the valuable contributions to international law by countries that may not, at some earlier time in history, have been considered “civilized” nations. The general principles of law is yet another difficult source for students to grasp because of the lack of a clear scholarly definition. In general, a legal principle becomes a binding general principle of law if states independently apply similar legal principles in a domestic setting. The theory is that if states independently apply these similar legal principles in settling domestic matters, they impliedly consent to be bound by those legal principles on an international level. For example, one may argue that if many countries initially permit circumstantial evidence to be admitted in judicial proceedings, this practice has been accepted as a general principle of international law. General principles are generally used as “gap filler” when there is no applicable treaty or customary law on a given issue. This source of law is analogous to a United States state court using judicial decisions from other states because those decisions are not binding as precedent on the court, but have some persuasive value. The best documentation of the general principles of international law are scholarly writings, treatises and legal encyclopedias.

D. Secondary Means of Determining International Law: Judicial Decisions and Teachings of the “Most Highly Qualified Publicists”

The final means for determining international law are the “judicial decisions and the teachings of the most highly qualified publicists of the various nations.” Just what is meant by secondary means, and how does this differ from conventions, custom and general principles, which are considered sources of international law?

In essence, the categorization of judicial decisions and scholarly writings as secondary means indicates that these two types of materials do not, in and of themselves, constitute sources of international law. Rather, we can use decisions and scholarly writings to determine whether concepts of customary international law or general principles exist. For example, suppose a student wishes to argue that a treaty requires a country to act in a certain manner. The student may use the treaty text and negotiating texts to develop his or her argument.

Suppose, however, that the student wishes to argue that an international custom or a general principle requires a country to act a certain way. Because there is no single source that lists all of the customary international concepts or general principles, must the student (or international lawyer) research the practice of every nation or examine the legal systems of numerous nations? This would be a daunting, if not impossible task. Instead, however, the student could look to the secondary means – judicial and scholarly opinions – as evidence of either customary or general principles of international law. The international law moot court student, in fact, will often cite judicial and scholarly materials to develop and support a customary or general principles argument.

The international law moot court student must become comfortable with another way in which judicial decisions perform a different function in the international legal arena than they do in the American legal system. Although American courts acknowledge the precedential and persuasive value of court decisions, the ICJ does not follow the principle of stare decisis. The U.S. Supreme Court described the role of judges and scholars in creating international law in The Paquete Habana:

[We turn] to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

Thus, the ICJ’s function is to apply the law, not to make new law, and the works of publicists are a means of ascertaining the applicable law. Researchers will use publicists’ works and judicial decisions to interpret the various treaties and customs, and therefore define and argue points of relevant international law.

In short, because the sources of international law are usually unfamiliar to the first-year law student – who may at best be only somewhat confronted with American legal hierarchy – it is crucial to develop a curriculum that will introduce students to the basics of these concepts without overwhelming them with the complexities of international law that they would encounter in an upper level introductory public international law course.

III. INSTITUTION AND ADMINISTRATION OF AN ACADEMIC INTERNATIONAL LAW MOOT COURT PROGRAM

A. The Student Selection Process

Just as there are many students who will jump at the opportunity to study international law in the context of first-year legal writing, there will be many first-year students who have no interest whatsoever in this area, or who would rather hone their domestic research and writing skills during their introductory legal writing course. A look at the Villanova program shows how a first-year international law moot court program can be designed to meet the needs of interested students without preventing uninterested students from learning in a traditional domestic law format.

During the 1994 spring term, Villanova first offered international law moot court to first-year students. During the fall semester, after students had become accustomed to researching and writing traditional legal writing memoranda based on state or federal law, interested students attended a presentation on the international law moot court program. At that meeting, students were told about the basic differences between the traditional moot court class and the international law moot court option. Because the course requires students to research sources of law substantially different from the traditional constitution-statute-case hierarchy covered during the first semester of law school, students were given the option to participate in the program or remain in a traditional moot court class that would address traditional domestic legal issues.

Of course, if a law school happens to have an international law aficionado among the faculty members who teach first-year courses, the challenge of creating a first-year international law legal writing course might seem a natural outgrowth of that faculty member’s academic interests. For those schools where the creation of such a program is desirable but not a natural outgrowth of the first-year faculty, there are a number of suggestions for creating and administering this type of program.

Under this kind of system, students may have a different legal writing professor for the second semester. Despite initial concerns about continuity and consistency of instruction, overall, students who opted to participate in the international law moot court program did not feel disadvantaged by switching professors at mid-year, nor did those students who switched into domestic law moot court legal writing sections.

Selection of students for an optional international law moot court program can also work well at a school that operates, in whole or in part, on an adjunct system. In that situation, the school may hire one or more adjuncts who teach only during the semester when moot court is required. Using a lottery system, the adjunct will “pull” interested students from the first-year class without sending students back into the other legal writing professors’ class sections. Thus, the traditional legal writing professors and their students benefit because they have smaller moot court classes.

B. Course Materials

As mentioned previously, the field of international law is distinct from domestic law in its hierarchy of law, research materials and court procedures. Before those students enrolled in international law moot court can begin to research and draft writing assignments effectively, they must become familiar with the basic concepts and structures of international law. Toward that end, the professor should compile an international law supplement to the students’ traditional legal writing test. A useful supplement might include materials on practicing international law, structures of international courts and organizations and basic readings on the sources of international law. Additionally, the supplement would contain a list of web resources and a variety of research and writing exercises.

Development of moot court problems is, of course, a crucial portion of designing a successful international law moot court course. One does not have to start from scratch, however. Since several law schools have instituted international law moot court programs, the opportunity to share problems makes problem development relatively painless. In addition, once a class of first-year moot court students graduates, a problem may be modified and “recycled.” Once a professor develops a successful problem, he or she may also modify it as the law changes over the years, i.e., if a relevant treaty is terminated or enters into force, or a new area of law (such as cyberlaw) emerges.

On a cautionary note, the international law moot court professor should avoid using or modifying previous Jessup or other official international law moot court competition problems in class. Not only may this raise copyright issues, but several of these competitions publish their best briefs on-line or in print, thus subverting the professor’s ability to have the students research their problems independently and tempting students to plagiarize.

C. Supplemental Instruction

Mastering the basics of international law also requires additional class sessions. Students will discover that these sessions are valuable because they lay the informational foundation upon which they will build their working knowledge of international legal concepts and structures.

At the outset of the term, class discussions should focus on the nature of international law, including its sources, principle concepts and governing bodies. First, the professor should explain the sources of international law discussed above. Attention should focus on the hierarchical structure of the sources of international law and the weight placed on these sources by international institutions such as the ICJ. Second, the professor should introduce students to the guiding principles of international law, such as jus cogens, opinio juris, and pacta sunt servanda. Because these and other important international principles are unknown to new students of international law, they generally require a thorough explanation. Finally, it is important for students to understand the role played by international institutions such as the United Nations and the ICJ, two of the primary mechanisms for international dispute resolution. Once students begin to understand how these principles and institutions interact in the international arena, their research will progress much more effectively. There are numerous texts that can serve as a basis for discussing these and other international law concepts.

Students exploring the field of international law for the first time are generally unfamiliar with the wide variety of resources available to the international law researcher. For most second-semester law students, familiarity with library resources is limited to domestic sources, such as case reporters, statutes, encyclopedias and digests. Although students may have been given a glimpse of international research materials during their first semester of law school, international research resources remain largely undiscovered to first-year students.

Before students delve into the research phase of their writing assignments, their legal writing professors should provide them with a general introduction to the variety of international law sources available both in print and electronically. Texts on legal research can provide students with the background necessary to begin a fruitful research process, and on-line resources abound. After assigning these informational texts, professors should schedule a library tour so that the students can see first-hand the sources discussed in the texts. International and foreign law librarians can provide invaluable assistance conducting these tours and/or teaching the students how to perform international legal research.

A guided tour through the international sections of the school’s law library will familiarize students with the wide variety of available international law resources. On a practical level, the tour acquaints students with the physical location of the resources and other tools, such as computerized databases, necessary to access the information. During the tour, a law librarian should briefly explain the type of information contained within each resource and how the students can effectively access the information. For general background information on international law, the law librarian should point out texts such as international treatises, encyclopedias and law journal articles. Of particular importance to the students during the research phase of their writing assignments will be the international treaty collections, such as the United Nations Treaty Series, the League of Nations Treaty Series, the Consolidated Treaty Series and the Treaties and Other International Agreements Series. The law librarian should point out these and other valuable resources such as ICJ decisions, UN documents, and other organizational charters throughout the tour, and may introduce students to electronic resources as well.

The school’s Jessup International Law Moot Court Team and any other international law moot court teams are other valuable resources that can provide students with additional background on the concepts and mechanics of international law. Mandatory attendance at an international law moot court team practice round, considered invaluable by Villanova students, will assist students as they begin to formulate arguments for their writing assignment. Witnessing a practice round brings into focus elusive concepts such as customary international law and general principles of international law, which are often initially difficult for students to grasp. Actually hearing a participant explain customary international law to a judge during a practice round, for example, reinforces the information digested by students as they review introductory materials, begin their research and take part in classroom exercises. Finally, the team’s practice round tends to quell feelings of anxiety experienced by students as they progress toward preparing for their own oral arguments. The practice introduces the students to the format of oral arguments and the types of questions they may be asked.

D. Classroom Exercises

While learning how to research international law, international law moot court students must also prepare to face the challenge of writing a formal, persuasive brief, which in international lingo is called a “memorial.” Persuasive writing may come more naturally to some students than the rigid objectivity required in traditional first-semester legal writing assignments. On the other hand, many students are unfamiliar with the subtleties of persuasive writing and may therefore need some instruction. Regardless of their background, classroom exercises on the techniques of writing persuasive briefs are a useful tool to sharpen the skills of all students.

Legal writing professors should design exercises that teach students the basics of constructing persuasive arguments. Again, the type and content of the exercises is limited only by the professor’s imagination. In a typical exercise, the professor might provide the students with a packet of information that describes a hypothetical international legal dispute, a list of relevant international legal principles and sample memorial abstracts relating to the dispute. The professor should then divide the students into small collaboration groups, with each group representing a different country in the dispute, to help the students learn to identify international legal issues and the key facts and arguments that relate to them. The groups may meet outside of class to discuss how the facts and international principles can be effectively molded into persuasive arguments for their side of the dispute. Students should come to the next class prepared to discuss their group’s findings.

Questions for the students to consider might include: what facts do we emphasize to make our arguments more persuasive; what facts should we de-emphasize; and what international principles support our country’s position? In addition, the students can draft different parts of their memorials – facts, summary of argument, point headings and the like – before completing a full draft of their memorials.

In-class discussion of the arguments formulated during collaborative, out-of-class sessions can develop into a lively debate as the students set forth persuasive arguments to further the interests of their assigned country. Discussion of the issues can focus on how the different groups chose to shape the facts in favor of their countries.

E. Citation Methods

An additional challenge confronted by students who choose to study international law is how to cite international legal materials properly. To prepare a thorough memorial, students typically will have to cite treaties, UN documents, decisions of international courts and tribunals and law review articles. Generally, during their first semester of law school, students learn only the basic rules of proper citation for domestic materials such as cases, statutes and law reviews. Therefore, students enter into the international law moot court program with little, if any, knowledge of how to cite international materials. As mentioned previously, there is a large body of international materials available to researchers, many with unfamiliar and often complicated citations. Spending some time reviewing the most commonly cited international materials, such as treaties, constitutions, statutes and UN documents aids students in their research and improves the accuracy of their citations. Citation forms for these types of materials can be found in both The ALWD Citation Manual: A Professional System of Citation and The Bluebook: A Uniform System of Citation (commonly known as the “Bluebook”). Either of these reference texts may be used to develop sets of legal citation problems to teach students how to cite previously unfamiliar international research materials.

IV. INTRODUCING INTERNATIONAL LAW INTO THE FIRST- SEMESTER LEGAL WRITING CURRICULUM

Granted, development and incorporation of a workable first-year international law moot court program into the law school curriculum may require a bit of planning and a willingness to innovate in the first-year curriculum, but as shown above, “Where there’s a will, there’s a way.” Incorporating international law into the first semester of the legal writing curriculum, however, is relatively simple.

During the first semester of a first-year legal writing course, students typically prepare a series of office memoranda based on hypothetical legal problems. Initial problems may use a “closed universe,” that is, students are given a statute and/or several cases with which to analyze their client’s problem and may not perform additional research. Subsequent problems usually involve “open” research, for which the student’s research is only limited by parameters set by the professor.

So, why not internationalize the memo writing process by assigning problems that raise issues of international law? Consider these examples:

(1) Rule 44.1 of the Federal Rules of Civil Procedure regulates the method by which a party to litigation may raise an issue of foreign law in a federal court proceeding. The student must advise whether a client who wants the court to apply foreign law concerning the propriety of a foreign adoption can do so under the Rules.

(2) The student represents a client that is a foreign corporation, which has been sued in federal district court. Under what circumstances can the client successfully move to dismiss the complaint based on forum non conveniens?

(3) The client is a foreign resident who believes that a foreign bank may have illegally obtained assets stolen from her family during the Holocaust. Can she file suit under the California Code of Civil Procedure?

(4) The client is party to a divorce proceeding pending in a foreign country. Can the foreign judge, magistrate or prosecutor obtain evidence from the client’s U.S. bank to assist a foreign court in adjudicating the foreign proceeding under 28 U.S.C. § 1782?

(5) The client was intentionally harmed by a national of a foreign country when the client was traveling abroad. If the tortfeasor travels to the U.S., can the court obtain jurisdiction over her under the Alien Tort Claims Statute?

(6) A foreign government is considered by the United States to be a “state sponsor of terrorism.” Can a U.S. citizen sue the foreign government successfully under an exception to the Foreign Sovereign Immunities Act?

These examples demonstrate but a few of the ways that the legal writing professor can internationalize the first semester of legal writing without requiring the students to analyze treaties, custom or other sources of international law. In fact, these problems illustrate the importance and role of international and foreign law in the American legal system. Through exposure to these issues, students can begin to see the importance of the actions and laws of foreign individuals and countries within our own legal system. A legal writing professor need not be an international law aficionado to incorporate international law into the first semester of the first-year legal writing program. All that is needed is knowledge of relevant domestic statutes and common law.

V. CONCLUSION

In the modern world made smaller by the Internet and instantaneous media reporting of world events, one can only assume that the interests of law students in matters of international and foreign law will not only grow, but familiarity with these concepts will be essential to their practice of law. The suggestions offered by this Article present curricular options that are relatively easy to incorporate into the first-year legal writing program. The opportunity to broaden our students’ horizons can start when they enter the door to the law school. Why not seize this opportunity?

Is this experiment really worth the trouble? So far at Villanova, experience has answered this question with a resounding “yes.” Despite being forewarned that participation in this program would require more difficult research and additional class hours, interest in the program has exceeded the number of class spaces available. Students who have completed the program have gone on to achieve membership on the Villanova Law Review and other law school organizations that base their selection criteria on either grades or completion of a substantial traditional legal writing project. In addition, students have found that their experiences have led to research assistantships involving international law, and have provided them with new conversation topics at job interviews.

In short, student experience has disproved the myth that a foray into a nontraditional subject during the first year of law school will somehow work to the students’ detriment. Instead, the course has provided the students with a unique and challenging educational experience that broadens their world view while expanding the traditional first-year law school curriculum. Their experience should indeed prove that “[a] legal education that makes international norms an integral part of the program [should] enable us to view the world in a different way, and perhaps make us better able to function as lawyers and judges in a larger world.”