Teaching International Law When the Ground Is Moving

This post is the third in the mini symposium, International Law in the Current Moment.

Teaching international law today presents distinct challenges. A sense of crisis has gripped not only the profession but also the broader public. Its primary causes include Russia’s devastating invasion of Ukraine, Israel’s large-scale destruction of Palestinian lives and livelihoods, and the starkly contrasting responses they have provoked.

Confronted with daily images of horrors in Ukraine, Palestine, and increasingly Sudan, students often arrive in my classes seeking ready‑made legal solutions to end the carnage and punish its perpetrators.

At the same time, students increasingly question the effectiveness of international law, and even its status as “law”. Whether binding or not, provisional measures issued by the International Court of Justice and resolutions of the General Assembly and Security Council calling for ceasefires and humanitarian access have largely gone unheeded. Moreover, the recent conduct of the United States suggests not only that international law does not constrain its actions, but also that the world’s most powerful country is in open warfare against the existing international legal order. Yet, the reactions of other powerful states who often portray themselves as defenders of an “international rule of law” have been muted at best.

When I began teaching international law two years ago, I tried to treat this moment of crisis as a teaching opportunity. I soon found myself oscillating between two seemingly conflicting approaches.

On the one hand, I sought to disabuse students of an idealized vision of international law as a coherent set of formal rules and to stress its entanglement with politics. Following Michael Reisman, we may treat crises as incidents that shed light on how states’ and other actors’ responses shape the operation and development of international law. This lens helps students grasp the antinomies underlying the international legal system and the role of lawyers in navigating them, as legal arguments mediate tensions between humanitarian intervention and sovereignty, immunities and responsibility, state consent and community interests.

On the other hand, I felt compelled to “hold the line” by reaffirming what international law does and does not allow. Rather than emphasizing law’s entanglement with politics, I tried to equip students to distinguish merely controversial claims from outright attacks on the international legal order. At times, I saw my role as helping to shore up international law’s authority under conditions of crisis.

Despite their different sensibilities, both approaches cast lawyers as guardians of the edifice. Lawyers may be more or less willing to accommodate states’ narrow interests, but they are charged with vindicating the underlying values or formal integrity of the international legal order.

I have come to think that neither response suffices. My views have been shaped by international lawyers and by colleagues teaching US constitutional law in earlier and current moments of perceived crisis. Today’s context, I suggest, calls for resisting a rigid—perhaps even corporatist—defense of international law. Rather than highlighting particular crises, we might focus on the sustained, dynamic processes through which legal principles are refashioned to serve different—even opposing—projects. This has led me to set aside accounts that treat the contemporary international legal order as essentially fixed in the immediate aftermath of World War II and instead to draw on scholarship on decolonization that portrays the order as continually reshaped, even in its fundamentals, through subsequent claims, contestations, and compromises.

The Limits of Crisis as a Pedagogical Frame

Michael Reisman famously urged teachers to focus on “incidents”—moments of opposition between states—to show how international law operates and develops in practice. Yet, as Arnulf Becker Lorca notes, Hilary Charlesworth has warned that making crises or incidents the basic unit of analysis distorts our view of the field.

A crisis-centered approach narrows our questions. It takes a snapshot after violence has already erupted and asks us to choose between two seemingly clear-cut legal positions. It sidelines uncertainty about the facts, downplays the long-simmering conditions that produced the crisis, and treats each incident as exceptional rather than part of broader patterns. It also directs attention from quotidian harms borne disproportionately by women, the poor, and populations in less powerful states. The focus thus remains on genocide rather than Nakba—on paroxysmic violence and its classification rather than the routine infringements that enabled it.

Shifting the frame from international law as a discipline of crisis to a discipline in crisis, does not necessarily allay these concerns. Such an approach continues to depict the mobilization of international law to support diametrically opposed views or projects as exceptional.

Similar criticisms have emerged in US constitutional law. Faced with a Supreme Court that has upended decades of precedent and dismantled hard-won rights, some scholars urge colleagues to resist treating the current Court as an aberration. Instead, they situate it within a longer trajectory of growing judicial power that also includes the celebrated Warren Court; in both eras, majorities were willing to unsettle precedent to pursue their ideological projects, albeit toward very different ends. Some now encourage teaching “constitutional supremacy” rather than “judicial supremacy”, emphasizing the role of other branches and actors in shaping constitutional meaning, and urge students to argue in the idiom of the existing Court even when they disagree with it.

These solutions do not translate neatly to international law. What would be the equivalent of “constitutional supremacy” in a system without a single apex court? If anything, the tendency today is to look to the International Court of Justice or the International Criminal Court to assert the primacy of law over law‑breaking states. The question is not only whether we can speak the language of a particular court, but what it would mean to speak the language of the Russian president, the US executive, or other powerful actors who avow disdain for existing rules. Uneasily, we might ask: are we simply trying to make international law “great again”?

In the face of perceived crisis—whether framed as internal division or external threat—many of us are tempted to seek renewed unity by reaffirming fundamentals. When a prominent French newspaper recently suggested that international lawyers were divided on whether Israel was committing genocide in Gaza, more than 150 French‑speaking international lawyers responded, asserting a broad consensus that Israel was committing grave violations of international law in Palestine, including violations of the Genocide Convention. When government talking points are laundered through media narratives as one side of a supposedly even debate, it is understandable—perhaps even laudable—for lawyers to mobilize to show that certain positions fall outside professional consensus.

But there are risks. Claims of consensus can mask assertions of disciplinary authority against dissenting voices. Meanwhile, the bare minimum supported by professional consensus can come to stand in for the discipline’s “red lines”. Thus, by invoking consensus to cast the 2022 full‑scale Russian invasion of Ukraine as an existential threat to the postwar order, we risk portraying the continuous violations of Ukrainian sovereignty since 2014—let alone the 2003 US invasion of Iraq—as prosaic challenges. By imagining ourselves as guardians of a unified, virtuous discipline, we obscure our role in legitimating practices that now serve as precedents for the conduct we decry. Whatever the value of distinguishing a creative, if implausible, justification of “targeted killings”  outside battle zones in Pakistan or Somalia from the patently unlawful extrajudicial killing of suspected drug traffickers in the Caribbean—it should not obscure how the former enabled the latter, how a slippery slope became a cliff, to paraphrase Marko Milanovic. To pretend otherwise is to suggest that international law is aligned with certain political projects by nature, rather than through contingent contestation.

Toward Histories of Everyday Contestation

I still believe students must learn to formulate legal arguments that are professionally plausible and audible to state officials. But I am less interested in guarding the field’s self‑image and more interested in revealing how international law can be harnessed to very different, even opposing, projects.

Accordingly, I emphasize international law as a terrain of contestation rather than a stable bulwark. The same doctrines can be deployed both to defend causes dear to my students and to undermine them. The aim is not to confer moral equivalence on every argument, but to invite students—and, by extension, colleagues—to reflect on the potential and limits of formalism in constraining discretion and on law’s imbrication with politics and material conditions.

Which legal projects prevail depends not only on doctrinal reasoning but also on the capacity to link legal claims to political projects that can mobilize officials, states, and populations and wield power and resources. Events we treat as exceptional are often better seen not as sudden ruptures but rather as the outcome of long‑term practices and accommodations: the erosion of WTO dispute settlement, the persistent denial of the Sahrawi people’s right to self‑determination, the normalization of drone strikes outside active hostilities.

From this perspective, the illegality of a practice is not a stable fact guaranteed by the text of the UN Charter but a precarious achievement, maintained only through ongoing argument, mobilization, and contestation. The trajectory of self-determination is a vivid example.

Consider the following statement: “Modern international law firmly follows a path that leads to the recognition of the right of the native races to freely dispose of themselves and of their ancestral lands” (“Le droit international moderne suit fermement une voie qui mène à la reconnaissance du droit des races indigènes de disposer librement d’elles-mêmes et de leur sol héréditaire”).

Apart from its dated reference to “native races” (“races indigènes”), this quotation would not seem out of place in General Assembly debates in the 1960s or in the rulings of a human rights court in the 2000s. Yet this invocation of peoples’ right to self‑determination (“le droit des peuples à disposer d’eux‑mêmes”) comes from the proceedings of the 1884–1885 Berlin Africa Conference, which has come to symbolize the late‑nineteenth‑century European colonial scramble. As articulated by John Kasson, the US delegate, the freedom of “native” peoples “to freely dispose of themselves and of their ancestral lands” served to legitimize European powers’ acquisition of African territory through pro forma treaties, often deceitfully presented or translated.

Even in 1945, when the principle of “equal rights and self‑determination of peoples” entered the UN Charter, it coexisted with an implicit legitimation of colonialism and the “civilizing mission” in Chapters XI and XII. Decolonization was not written into the Charter as an inevitable outcome; it emerged from a protracted history of claims and counter‑claims backed by political struggle.

By the 1960s and 1970s, the mobilization of colonized peoples and authoritative interpretations of the Charter in the form of General Assembly resolutions established the right of peoples under colonial rule to self-determination and made decolonization a central norm of the postwar order. Since then, the International Court of Justice has confirmed the erga omnes and the jus cogens character of the right to self-determination, at least for peoples under foreign occupation.

Self‑determination, in other words, has never been a fixed, self‑evident principle. It has been appropriated and reappropriated—invoked first to justify imperial expansion and later to mandate decolonization. Its current standing as a peremptory norm is the product of sustained legal and political work, not the simple unfolding of a latent promise in the Charter’s text.

Concluding Thoughts

Teaching international law today, then, is not simply a matter of choosing between crisis‑driven realism and formalist defense of the edifice. Both, in different ways, risk narrowing our field’s horizon: one by reducing our imagination to emergency management, the other by clinging to an image of international law as a coherent, self‑correcting system that merely needs our loyalty.

A different approach, which I am still learning to practice, asks us to situate today’s flashpoints within longer histories of claims, compromises, and reversals; to resist appointing ourselves spokespeople for “what international law says”; and to be more candid about the ways our own arguments can entrench as well as resist injustice.

This approach does not demand that we abandon the impulse to call certain acts illegal or to expose bad-faith arguments. It does require pairing that impulse with a clearer view of how legality is made and unmade over time, and of the political work required to align international law with the projects we care about.

If there is a task for us in this moment, it may be less to “hold the line” than to show how the line has been drawn, by whom, and at whose expense—and to decide where we want to draw it next.