Thursday, March 17, 2005

International Law "Must Reads"

We here at Opinio Juris are planning to compile a list of what we consider to be “must reads” for anyone interested in international law. Until we build that part of the site, and because we have received some recent questions from readers as to what we would put in that category, I wanted to post an incomplete and somewhat idiosyncratic list of some books and articles I think anyone specializing in international law should be familiar with. (For the sake of space and time, I do not include primary sources here.)

This version of the list will focus on public international law. At some later date we will include more works related to international trade and economic law, private international law, and other topics of interest.

I encourage interested readers to use the comment function below to post suggestions as to other books or articles (or films?) that we should include. Julian and Peggy may also post some further suggestions before we actually build this section for the website.

So, until then, here are some of my suggestions…

General Overview Texts

Restatement of the Law (3rd) of the Foreign Relations Law of the United States. Not agreed upon by all U.S. lawyers, but about as close to a definitive statement on the status on international law in the U.S. (as of the late 1980’s, at least) as you are going to get.

Louis Henkin, How Nations Behave (2d ed. 1979). Dated now, but a seminal work on modern international law.

Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994). Lucid discussion of the international legal system; influenced by the Laswell/McDougal/Reisman Yale Policy School. Rosalyn Higgins is currently a judge on the ICJ.

Three Classics

Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1624). The so-called “father of international law” was also the general counsel (for lack of better term) of the Dutch East India Company. Almost everyone cites to it, not many people have recently read it.

Emmerich de Vattel, The Law of Nations (1758).

Jeremy Bentham, Principles of International Law (1789). He coined the term “international law.”

Influential Treatises

Oppenheim’s International Law (9th ed., 1992, Robert Jennings and Arthur Watts, eds.). Magisterial. A great place to start on just about any question of public international law. Many scholars also like to refer to the Seventh or Eighth Editions, published in 1948 and 1955, respectively, and edited by Sir Hersch Lauterpacht, then-professor at Cambridge University and soon to go on to be a judge at the ICJ.

Ian Brownlie, Principles of Public International Law, (6th ed., 2003).

James Brierly, The Law of Nations: An Introduction to the International Law of Peace (1963).

History of International Law

S.A. Korff, An Introduction to the History of International Law, 18 Am. J. Int’l L. 246 (1924).

Martii Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law: 1870-1960 (2002). A fascinating account of the evolution not so much of international law but of the international legal profession during this period.

Modern Theoretical/Jurisprudential Works of Note

Thomas M. Franck, The Power of Legitimacy Among Nations (1990)

Thomas M. Franck, Fairness in International Law and Institutions (1995)

I think Franck is currently the deepest thinker on jurisprudential problems of the international legal system. These two books get to core issues as to why international law is (or is not) followed and issues of fairness in the international legal system. I especially like The Power of Legitimacy for the way it explains how rules become perceived as legitimate and that this legitimacy motivates state compliance. It is an alternative to the standard (and in my view not always accurate) explanation that rules are followed only because of the credible threat of coercion.

Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995). This is one of the major works of “transnational legal process,” along with Harold Koh’s articles listed below. While Koh focuses on litigation issues, the Chayeses look at the role of international regulatory regimes in shaping a modern understanding on international law. By the way, Abe Chayes was State Department Legal Adviser under President Kennedy and Toni Chayes was Undersecretary for the Air Force in the Carter Administration.

Anne-Marie Slaughter, A New World Order (2004). This brings together her analyses on international regulatory coordination, transnational judicial dialogues, and other cross-border relations in a portrait of “disaggregated world order.” She paints a compelling picture on how law is used in a variety of settings that may not normally be considered as part of classic international law and yet defines this “new world order.”

Harold Hongju Koh, Bringing International Law Home, 35 Hous. L. Rev. 623 (1998). A crucial article in laying out his theory of “transnational legal process” and how international and domestic legal regimes interact. His discussion of how international rules become internalized in domestic law and politics is excellent. This is one of those all-too-rare articles that, as I finished reading it, just seemed to have the ring of truth.

Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181 (1996). A precursor article related to “Bringing International Law Home.”

Eric Posner & Jack L. Goldsmith, The Limits of International Law (2005). Posner and Goldsmith are prominent critics of mainstream international legal scholarship. Their book addresses what they see as false assumptions and conceptual biases in much current international legal scholarship. I don’t necessarily agree with their argument but it is thought-provoking and anyone interested in international law should assess their argument for themselves.

I couldn’t mention the Posner and Goldsmith book without also noting the debate that raged over the role of customary international law in the U.S., sparked by a series of articles that Goldsmith had written with Curtis Bradley. Their argument was notably set out in
Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997).

In response to this line of criticism, see, among other responses,
Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev 1824 (1998).

Martii Koskenniemi, From Apology to Utopia (1989). This book is the antecedent to The Gentle Civilizer of Nations, which I mentioned above. It is a more theoretical discussion of the need of international lawyers to not be overly-technical but rather to use social theory to assess the “deep structure” of international legal discourse. As with his later book, this work is more concerned with how international lawyers do what they do than with the substantive content of international law.


Anonymous China said...

Thanks, fascinating post. Some suggestions: on history, I thought the Korff more of a curio than a persuasive article. Much better is Yasuaki Onuma, 'When was the Law of International Society Born?', Journal of the History of International Law, 2, 1: 63-79 (2002). I'd suggest above all Wilhelm Grewe's magisterial The Epochs of International Law (2000) (trans. Michael Byers), though it needs to be read alongside Koskenniemi's critical review in International and Comparative Law Quarterly 51, 3: 746-751 (2002). Also decent is Arthur Nussbaum A Concise History of the Law of Nations (1947) (the 2nd ed. is supposed to be better but I've not seen it). I could make loads more suggestions, especially on history and critical jurisprudence, but will rein myself in - anyway, on history the Grewe is indispensible.

3/17/2005 8:55 AM  
Blogger Chris Borgen said...

I completely agree on the Grewe book and Koskenniemi review; my oversight.

I haven't read the Nussbaum or the Onuma but will look for them.

3/17/2005 6:52 PM  
Anonymous Michael Froomkin said...

I think if you are going to have a list with more than five modern books on it, one should be Rosalyn Higgins, Problems and Process: International Law and How We Use It

3/21/2005 12:10 PM  
Blogger Chris Borgen said...

It is...

3/22/2005 3:35 PM  
Anonymous B. Madison Mount said...

Two suggestions on the history of international law, from a philosopher's perspective: J.F. Courtine's "Nature et empire de la loi: Etudes suareziennes" (Paris, 1999), which is indispensable on Vitoria, Suarez, and Las Casas, and has a great bibliography; and Carl Schmitt's idiosyncratic but fascinating classic "Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum" (Berlin, 1950).

There should probably also be some Kelsen on the list, but I'll leave the choice to those more knowledgeable than I.

3/24/2005 4:24 AM  
Anonymous Aaron Ostrovsky said...

If I could make a plug for fiction...I had a class with Judge Bruno Simma (ICJ) this last semester and his favorite piece of historical fiction involving international law, and one I can confirm is great: "Professor Marten's Departure" by Jaan Kross.

4/14/2005 10:03 PM  
Anonymous B. Madison Mount said...

By the way, for those who are interested, a lot of old IL treatises, including the 1905 edition of Oppenheim, are available in PDF form at the Bibliotheque Nationale's website:

4/27/2005 12:18 AM  
Blogger Maria said...

Grewe's book"The Epochs of International Law" is an excellent choise.I would suggest to read it together with a Roscoe Pound short piece,a lecture he gave in 1923 "A philosophical theory of international law".I think those two are nicely read together!

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