In one week, roughly two dozen students from Marquette University Law School and the University of Wisconsin Law School will return to America bringing with them many fond memories of Giessen, Germany, their jet-lagged bodies, and an inexplicable taste for beer mixed with coca-cola. In recognition of this fact, this week’s “Best of the Blogs” features an international law edition.
What is the status of a Declaration of Independence under international law, and must the nations of the world respect the self-proclaimed independence of a break-away state? That is the question that the International Court of Justice faced when it decided that Kosovo’s Declaration of Independence was legal. Professor Christian Tams of the University of Glasgow discusses the ICJ’s ruling in the Kosovo Opinion and finds the criticism that many scholars leveled at the world court to be unwarranted. In this post on the Blog of the European Journal of International Law, Professor Tams ties the ICJ’s rather lukewarm endorsement of a right to declare independence to the uncertain status of seccession under international law. Given the manner in which international law has neglected the issue, it is doubtful that the ICJ could have gone much further to support a right of self-determination than it did.
The confirmation hearings for (now) Justice Elena Kagan raised the issue of the use of international law as a tool for interpreting the United States Constitution, and Justice Ruth Bader Ginsburg gave a speech on the topic earlier this month that received some media attention. Over at the blog Opinio Juris, Duncan Hollis summarizes Justice Ginsburg’s defense of the practice. He notes her references to historical appeals to the use of international law as an interpretive guide, by Alexander Hamilton and John Marshall among others. He also underscores Justice Ginsburg’s strong personal endorsement of the practice. However, what interests him the most is that Justice Ginsburg includes legal blogs among the sources of international law that judges in the United States should feel free to consult! You can read his post here.
The esoteric question of the interaction of international law with domestic law in the United States is given a concrete application in a recent post by Professor Paul Stephan of the University of Virginia Law School. In this post, he examines the Supreme Court’s recent opinion in Abbott v. Abbott. In interpreting the scope of the International Child Abduction Convention, the majority opinion by Justice Kennedy gave weight to sources outside of the text, such as the opinion of the U.S. State Department, the holdings of foreign judicial decisions, and the writings of international law scholars. In a passage certain to send shudders down the spine of judicial conservatives, Professor Stephan describes what he sees as the majority’s acceptance of an “evolving” process of treaty interpretation:
When the Senate and Congress consent to U.S. accession to a treaty, what should they expect the courts to do down the road? This question, present behind every decision to approve a treaty, takes on added complexity when the treaty has many parties and seeks to promote a broad common legal regime. For the project to succeed, it may be necessary to adjust the details of the treaty obligations to reflect changes in society, such as increased use of joint custody. However, greater flexibility means allowing the international regime to operate something like a domestic administrative agency, with at least limited lawmaking powers vested in its various parts. It also means giving the Executive branch, through which the United States interacts with other countries, a greater role in shaping the evolving meaning of the international obligation.
The Abbott majority seemed comfortable with the delegated lawmaking implied by its approach to treaty interpretation. To be sure, the Court first determined that the interpretation it embraced conformed to the text of the treaty. But rather than arguing that this interpretation was the best reading of the treaty text or one strongly supported by the negotiating record, it moved on to what the participants currently understood the Convention to mean. As a result, the Court favored the evolving consensus of treaty parties over the original understanding of the treaty makers.
Finally, what is a newly minted American law grad to do, given the difficult employment environment in the United States? At Law Blog, at the Wall Street Journal, Nathan Koppel reports on U.S. attorneys moving to India in order to to manage legal outsourcing companies. You can read his post here. It’s not for everyone, of course. But, if you can stomach a strong curry, readers of the Marquette University Law School Faculty Blog may want to send a few resumes to New Delhi.