LL.M. Executive Director Joel Trachtman on international law at Fletcher and beyond
This year the LL.M. program welcomes Professor Joel Trachtman as its new Executive Director. I’m happy to share this post from him on the renewed urgency of studying international law, and the many opportunities to do so at Fletcher.
The Fletcher School of Law and Diplomacy and the Future of International Law
At this particular historical moment, one might be forgiven for wondering how bright the future of international law may be. The U.S. seems to have forsaken multilateralism at the World Trade Organization, the International Criminal Court, the Paris Agreement on Climate Change, and the United Nations, and also seems to turn its back on NATO and many of its trade and investment agreements. At least for the U.S., unilateralism seems increasingly to be the mode of international relations, with little legal constraint.
After all, what would induce a powerful state to accept legal rules that restrict the full exercise of its power? The Fletcher School was founded in 1933 with the vision to bring international law to bear on international relations—to constrain the raw exercise of power—in order to eliminate war and to improve people’s lives. We are still working to assist in achieving that mission, by educating students to evaluate, operate, negotiate, and yes, to imagine, rules and institutions of international law. International law does not come about from idealism, although community spirit, trust, and altruism can serve as an important foundation. International law comes about because of the interest, whether enlightened or not, of states. Our interdisciplinary study is the relationship of law to power.
International law is built functionally, piece by piece, as states representing their citizens decide that they can do a better job in fulfilling their goals through legal rules. Those legal rules are developed as opportunities for “exchanges” of authority—in the legal context, exchanges of jurisdiction—that can improve the position of all states parties to the exchange are identified and implemented.
Like contract between private persons, international law is the mechanism by which one state may negotiate to induce another state to take account of the effects of the second state’s measures on the first state. The vocation of international law—to facilitate reciprocal compromises of otherwise independently-determined national public policy—involves compromises of autonomy, for various reasons. One state may be concerned about the environmental, health, refugee, human rights, tax, investment, or trade policy of another state. These national policies may have direct and harmful effects on foreign persons.
Law is made this way, but then in order to be useful—in order to fulfill its function to constrain the behavior of states—it must affect states’ behavior. So international law must be evaluated in terms of its ability to affect behavior. One way that international law can affect behavior is through reputational or material costs of violation. Another way is through states’ own conception of their communities as law-abiding. In any case, the internal politics of the state determine the likelihood of the state complying with international law.
The Fletcher School provides students with a unique opportunity to study international law in interdisciplinary context. International law is a tool of national, and international, public policy. National goals determined through national politics determine the formation of, and compliance with, international law.
At Fletcher, international law is understood as a policy tool, to be used by states to advance their interests. International law is an essential part of an integrated interdisciplinary international public policy program. Courses at Fletcher in business, economics, politics, history, and environmental policy, among others, are essential to understanding these processes. Conversely, international legal study is an essential component of an international public policy education. (This brief post focuses on public policy, but in similar ways, international legal study is an essential component of an international business education.)
Because of increasing globalization, technological change, and environmental and demographic challenges, the world will in the coming years require more, not less, international law. This international law will address virtually every area of national public policy, as these areas of national public policy are increasingly understood as having consequences for other states. See my 2013 book, The Future of International Law: Global Government, for more on this.
The Fletcher interdisciplinary approach to international relations, and to international law, is the right one, and prepares students for vision and leadership in international relations. This is true for LLM students—lawyers who need interdisciplinary background to understand the purpose and effects of law—but it is also true of non-law students, who need education in the discipline of law in order to be effective international relations professionals. See my short and concise book, designed to introduce non-lawyers to the arguments that are salient in the legal context, and in other contexts as well: The Tools of Argument: How the Best Lawyers Think, Argue, and Win.
It is an excellent and important time to be studying international law in its interdisciplinary context at Fletcher. I am personally gratified to be leading the Fletcher LLM program with my 7 international law colleagues, constituting one of the strongest international law faculties in the world, and with the important participation of experts in every discipline addressed at the School. We look forward to productive discussions with outside speakers at our High Table events, at our annual Capstone Conference, and in the other events sponsored by the Center for International Law and Governance.