29 March 2010

The Nexus Between Comparative Law and International Law

The Nexus Between Comparative Law and International Law

This is my first substantive post as guest blogger and – since I will be out of contact for some time in the coming weeks – I thought I would start off with a broad, macro-level topic that might generate some discussion. Later posts will address the more narrowly defined subjects of state-building, issues related to national security, and so forth. At the outset, however, I would like to begin by exploring the nexus between comparative law and the broader subject of international law. While it is quite common to see these two subjects coupled together in contemporary academic discourse, it is clear that these are two very distinct disciplines. Although the definition of comparative law (like its purpose) is a topic of contention, I will define it here as the study of differing legal systems and the ways in which those differing systems operate. International law, in contrast, is defined as the body of rules and principles of action which are binding on sovereign states.

The point here is that they are conceptually different. International law is not comparative law and vice versa. As such, one may study one without necessarily exploring much of the other. For instance, at a law school such as Louisiana State University’s Paul M. Hebert Law Center – where students may earn a Diploma in Civil Law – the focus of many (perhaps most) courses is comparative in nature while the school’s offerings in international law remain relatively modest. One could possibly, therefore, emerge from that program with a deep understanding of comparative legal issues but only a cursory understanding of the international legal system, the Geneva Conventions, the role of the United Nations, etc. Conversely, The George Washington University Law School in D.C. – like many American law schools – offers an advanced degree in International and Comparative Law, though a glance at the course catalog demonstrates that (like most law schools in North America) the institution’s clear emphasis is on the former subject over the latter. One might, therefore, emerge from that program trained as a first-rate international lawyer while never having heard the names of Portalis, Planiol, or Al-Sanhuri uttered – even in passing. (Note: I am a proud graduate of both of these institutions and do not mean to criticize either but only to use them as a means of emphasizing the distinction between these two fields.)

So, given the clear conceptual distinction, why the insistence on marrying these disciplines in degree programs, the titles of various publications, etc.? Why fit them under the same rubric? Is it simply a nice pairing (like filet mignon and a good Cabernet) or are there synergies between the two disciplines that make one relevant to the other?

Professor Christopher Blakesley, in the opening chapter of The International Legal System (Foundation Press, 2001), offers some suggestion of the link between the two subjects in his discussion of the sources of international law. Noting the similarities shared between Article 38 of the Statute of the International Court of Justice and the initial articles of the Louisiana and Iraqi civil codes, he opines that a true understanding of the structure of international law requires an understanding of how other legal systems operate and how different cultures approach legal issues.
[T]o understand international law properly, to be able to negotiate, litigate, or even to communicate effectively in the arena of international law, it is necessary to understand that its origin and discipline, its philosophical context, and the mindset of many of its practitioners is “civilian” or a variation on that theme rather than common law in inspiration. To practice international law well, one should also be a comparativist.
Blakesley et al. at 4.

Professor Blakesley, thus, makes the point that a comparativist approach to international law allows one to better navigate the intellectual contours of that particular field. Comparative law, in that regard, serves to palliate the confusion that might sometimes arise in an anarchic world of sovereign states – each of which perceives law a bit differently.

But even beyond Blakesley’s observations about the epistemological foundations of international law, there is another nexus between international law and comparative law that is of great value to practitioners – a common connection derived from the dimensional structure of the international legal system. International law, as noted, is defined as the body of rules and principles of action which are binding on sovereign states. It is, for the most part, the law of sovereign states governing their interaction with other sovereign states on the international plane. But as the U.S. Supreme Court has made perfectly clear, not all international law obligations automatically constitute binding law which is enforceable in domestic courts. See, e.g., Medellin v. Texas, 552 U.S. 491, 504 (2008).
This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that--while they constitute international law commitments--do not by themselves function as binding federal law.

Accordingly – the impact of international human rights instruments notwithstanding – as a general proposition, international law applies to governments on the international plane. What happens within the sovereign’s borders (and how it happens) is still a function of each respective government’s domestic law. Otherwise stated, domestic legal systems are still where the rubber hits the road. Even in the rapidly evolving field of international human rights law (which seeks to make individuals the subject of international law) a leading commentator has noted that “[t]he primary sphere for safeguarding the rights of individuals long has been and continues to be the domestic jurisdictions of capable and sovereign states.” See Robert Jackson, Sovereignty 125 (2007).

As such, while the field of international law allows you to discern a government’s obligation under international law, it does not necessarily allow you to discern how – or if – that obligation can be implemented by the sovereign state which owes the obligation. In order to take the next step in the analysis and determine how a government will take legal action and what legal devices will be implicated, one must undertake a study of the relevant domestic legal system. And, thus, one enters the realm of comparative law.

An excellent example of this is the Medellin decision cited above. An understanding the obligations of the United States under the Vienna Convention on Consular Relations (and other treaties implicated) would not have allowed one to predict the outcome relative to the defendant in that matter. Similarly, while both the United States and France are parties to the ICCPR – with its myriad provisions governing detention and due process – an understanding of those obligations does nothing to help one understand exactly how a suspected criminal might be detained by those governments nor how the legal process in each respective country will unfold. Only a comparative study of the relevant legal systems can allow the observer to take that additional step in the legal analysis.

Such knowledge is valuable for predicting outcomes and framing arguments but can also serve an important function by informing policy-makers at the initial phases of decision-making in the international arena. For instance, by understanding the legal realities of the domestic laws of the governments involved, those drafting treaties can better style the operative language of such instruments so that it comports with the legal systems with which the international instruments will interact.

Comparative law and international law are, therefore, mutually reinforcing disciplines. For the practitioner, comparativist approaches to international law, as Blakesley notes, allow for a more fulsome understanding of the structure of that particular field and its intellectual undergirding. For decision-makers at the international level, comparative law can greatly inform the policy-making process. And, of course, policy-makers faced with problems associated with international law can always benefit from comparative law as a solution-supplying mechanism. Thus, though they are distinct disciplines, one may properly see international law and comparative law as occupying different places along the same conceptual continuum in the international legal process.

All of this will be equally relevant to coming discussions that will focus on state-building and national security – though the role of comparative law in those respective realms also serves to operate in different ways which are specific to that subject matter.

I will be in Africa next week and, shortly thereafter, will be participating in my annual training with the U.S. Army Reserves. I will try to briefly post on a topic of interest in the midst of all that and, when the dust settles, will make efforts to again post something more substantive. I have asked certain colleagues who are engaged in study and/or practice of this and future topics to kindly add their views and expertise as I post – and I’ll be citing their work in an effort to lure them into the discussion. (“[The Prince] should not deviate from what is good, if that is possible, but he should know how to do evil, if that is necessary.”) Until then, I look forward to comments and discussion on this most recent post.


Note: Any opinion expressed in this post is solely that of the author and not necessarily that of any agency of the United States government. Moreover, if you knew the position occupied by the author in said government, you would understand how ridiculous any assumption to the contrary would be.

Referenced material and reading related to this topic:

Christopher Blakesley, et al., The International Legal System (Foundation Press, 2001);

Robert Jackson, Sovereignty (Polity Press, 2007);

Medellin v. Texas, 552 U.S. 491, 504 (2008);

L. Amede Obiora, Reconstituted Consonants: The Reach of a "Common Core" Analogy in Human Rights, 21 Hastings Int'l & Comp. L. Rev. 921 (1998).

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