IGA 105: The Politics of International LawSpring 2014

** DRAFT UPDATED December 20, 2013 **

Professor

Kathryn SikkinkOffice: Littauer 308Telephone: E-mail: kathryn_sikkink@hks.harvard.edu

Assistant

Derya HonçaOffice : Rubenstein 215Telephone : 617-495-1923Email : derya_honca@hks.harvard.edu

Time and Location

Tuesday and Thursday, 2:40 pm-4:00 pm, L230

Office Hours: Monday: 1:15-3:15 (or by appointment)

Course Description

This course starts from the assumption that increasingly policymakers need to know more about international law in order to understand and act in world politics. International politics is now so interpenetrated with international law concepts and practices that one can no longer be an effective policy maker working on international topics with a basic familiarity with international law. The central goal of the course is to familiarize students with international law and with a broad range of analytical and policy tools to enable them to think and act critically when drafting and implementing policies related to international law. The course provides an introduction to some aspects of the method and substance of international law, learning some key legal concepts like sovereign immunity, jus cogens, general principles of international law, principles of jurisdiction etc. But this is not a law course. We cover legal subjects to understand how politics and law interact in shaping international relations today. We will explore the following issues: How do we explain where particular laws and norms come from? Why do states commit to international treaties and to soft law? How do these affect the shape of global politics and the outcomes of particular events? How often do states obey or comply with international law, and why? We will also examine substantive areas of international law such as the use of force and the laws of war, human rights, environmental law, and international criminal law.

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Expectations and Evaluation:

This is a graduate-level course and will have the associated standards and assignments: complete attendance at scheduled classes, assignments completed on time, and evaluation according to students’ class participation and quality of written assignments.

Class ParticipationYou are expected to come to each session prepared to discuss the day’s assignment, readings and cases, and to make thoughtful contributions to the learning of your classmates. Class participation, attendance, and the timely completion of the Three Daily Questions (see below) account for 30% of your course grade.

This course uses regional panels to bring different country perspectives in the room and to make sure that everyone actively participates in class conversations. Students will be asked to select a country to be their focus throughout the semester. You should sit with your regional panels on case study days, where we will have simulations and debates. You should always know your panel country’s position on an issue we are discussing, and I will call on members of the panel to tell me if the country signed, ratified, or listed reservations on a treaty that appears on the syllabus. One four different days, you will be asked to hand in a 200-250 word summary of your country’s position on different treaties and legal matters that we will be discussing in class. These brief summaries will together account for 10% of the class grade.

Three Daily QuestionsFor each class meeting you are required to briefly answer the Three Daily Questions in writing. Answers to the three questions are mandatory, and graded complete-incomplete. Your answers are to be posted to the course webpage by 12 pm.

The first question always is “In what you read for today, what did you find most illuminating? Why?” The second question always is “In what you read for today, what did you find most puzzling? Why?” The third question is the daily topical assignment, which appears in the black box on the daily course assignment sheet.

Your answers to the three daily questions should be no longer than a few sentences each. In a few sentences, you cannot possibly give a thorough, well-defended answer to the topical question, and a thorough, well-defended answer is not expected. You should, however, give the beginnings of a thoughtful answer.

You are encouraged to discuss the daily questions with your study group, but your answers must be your own work. In particular, you may not give an answer to the two “In what you read for today …” questions if you have not done the reading yourself. Instead, your answer should simply say, “I have not read enough for today to find something illuminating or puzzling.”

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On the three days when you are submitting longer written arguments (see below), you do not need to submit answers to the Three Daily Questions. You may also skip four additional days without penalty. In total, you are required to submit the Three Daily Questions 17 times.

Case Papers: During the semester, you will prepare and submit three 500-word case paper (see detailed instructions at the end of the syllabus with more information on specific cases) from a list of five possible case opportunities. You will write from the point of view of an international political-legal expert working within the tradition of international law, and make judgments based on that role. You should first draw on widely shared legal norms, custom and treaties to inform your analysis. Given that this class is about the intermingling of politics and law, you will follow your legal analysis with a political analysis and see how they relate to one another and whether or not your recommendations vary when political considerations are explicitly taken into account. Each paper will account for 10% of your grade (for a total of 30%). They are due at the beginning of class on the day the case is being discussed. Since one of the purposes of the case paper is to promote informed discussion of the case, I will not accept any late case papers. Because you have five case opportunities in which to submit a paper, if some emergency arises, you can submit a case paper at a later date.

Final Policy Memo:

In the final policy memo, due during finals week, you will write a longer (1,500 word) legal policy memo, on one of three topics: 1) Do we need a more well developed legal framework to regulate the use of drones, and if so, what should it be? 2) What existing or future possible legal arrangement would be both possible and effective in contributing to stabilization in climate change? 3) Should the countries of the world write a new treaty on violence against women? In each case, you will survey the existing legal situation with regard to the issue, and then make political and legal recommendations about a course of actions. You must refer to class readings about international law so your recommendations for practice are informed by what you have learned in your class. The final policy memo will be worth 30% of the grade.

EnrollmentAuditing is limited and by permission of instructor. Those taking the course for credit have precedence at office hours.

Grading

The HKS Academic Council has issued recommendations on grading policy, which include the following curve: A (10-15%), A- (20-25%), B+ (30-40%), B (20-25%), B- (5-10%).

Academic Integrity

“We expect you to express your ideas and to sustain arguments in your own words. Failure to do so is plagiarism. It is unethical and often illegal. Plagiarism ranges from the blatant—purchasing a term paper or copying on an exam—to the subtle—failing to credit another author with the

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flow of ideas in an argument. Properly acknowledging the use of the words of others and avoiding excessive quotation of the work of others will eliminate most plagiarism problems. If you want to quote from a published work, including a Web page, you must put the passage in quotation marks and provide a citation. Simply changing a few words from the writings of other authors does not alter the fact that you are essentially quoting from them. Paraphrasing of this sort, where you use the words of another almost verbatim without acknowledging your source, is the most common form of plagiarism among undergraduates. When you state another author's viewpoint, theory, or hypothesis—especially when it is original or not generally accepted—you must also include a reference to the published work. In general, citations are unnecessary when the information is considered common knowledge or a matter of widespread agreement. Common knowledge can often be identified by its appearance in several of the assigned readings for class…. Failure to maintain academic integrity in any portion of the academic work for the course shall be grounds for awarding a grade of F for that assignment. (This paragraph was drawn in its entirety from Clark Miller’s syllabus at: http ://www.hks.harvard.edu/sdn/syllabi/files/Miller-Science_and_Democracy.pdf)

Class Page

The Class Page is only available over the Intranet. Go to the HKS home page. Select the login button on the screen. Enter your username and password. Select IGA105 in Course Listings and you’re in!

If you are not a KSG student and need access to the Class Page, there is a procedure connected to the cross-registration process. Auditors can also be accommodated through this same process.

Daily Topics and Required Readings:

Session 1: January 28, 2014: Introduction to the Politics of International Law

Required Reading: Shirley Scott, chapter 1 “International Law and World Politics Entwined,” in International Law and World Politics, 1-18. (CW).

Robert Keohane, “International Law and International Relations: Two Optics,” Harvard Journal of International Law 38 (1997 (487-502),

Session 2: January 30, 2014: Case #1: The Obama Administration and the decision whether or not to intervene militarily in Syria (How was international law and world politics entwined in this episode).

Required Reading: Sean Murphy, Principles of International Law, Chapter 1, “Foundations of International Law,” pp. 3-30.

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Also read: The United Nations Charter (Preamble and Chapters I, V, VI, and VII), The Chemical Weapons Convention (Preamble, Article I and Article XII).

Ian Hurd's blog post on Syria:http://opiniojuris.org/2013/08/31/syria-insta-symposium-ian-hurd-dont-bomb-assad-even-legal/Rosa Brooks' blog post on Syria:http://www.foreignpolicy.com/articles/2013/06/20/so_you_want_to_intervene_in_syria_without_breaking_the_law?page=0,1Anne Marie-Slaughter on targeted killings of Heads of State:http://www.foreignpolicy.com/articles/2003/05/01/mercy_killings

Case country assignment due in class: Figure out your country’s position regarding the legality of the US retaliating against Syria for using chemical weapons against its people.

Session 3: February 4, 2014 What is international law? What is legalization? Who are the relevant actors in International Law?

Questions: How do the authors define law and legalization? Do their definitions affect the kinds of research they do or the kinds of conclusions they reach? What is the difference between soft law and hard law and between law and norms? What are the causes and consequences of increasing legalization in the international arena? Let’s continue to use the case of Syria to think about some of these questions, e.g. Who are the actors involved in the case of trying to destroy chemical weapons in Syria?

Required Reading: Sean Murphy, Chapter 2, “Actors in International Law,” p. 33-74.

Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal, “Introduction,” and “The Concept of Legalization,” and “Hard and Soft Law in International Governance,” in Special Issue on "Legalization and World Politics," International Organization 54:3 (Summer 2000): add pages.

Session 4: February 6, 2014 International Law Creation:

Questions: Why and how do new norms and law emerge? Where do they come from? Why do some norms flourish and get incorporated in hard law treaties while others remain as soft law? How do norms change? We will compare the case of the landmine treaty to the case of drones, which are not explicitly governed by a single treaty.

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Required Reading: Sean Murphy, chapter 3, “International Law Creation,” pp. 77-124.

Richard Price, "Reversing the Gun Sights: Transnational Civil Society Targets Landmines," International Organization 52:3 (Summer 1998), pp.613-644.

Martha Finnemore and Kathryn Sikkink, "International Norm Dynamics and Political Change,” pp. 887-917, in International Organization 52, 4 (Autumn 1998).

Session 5: February 11, 2014: Treaties I

Required Reading: Shirley V. Scott, Reading a Multilateral Treaty, 141-157.

Students must select and read one of the following treaties in advance of classo Charter of the United Nations o Chemical Weapons Convention o Landmine Treaty o Convention on the Elimination of all forms of Discrimination Against Women

(CEDAW) (1979)o Convention against Torture (CAT) o Montreal Protocol on Substances that Deplete the Ozone Layero United Nations Framework Convention on Climate Change (and its Kyoto

Protocol)

Individual In-class Exercise: Diagraming a Treaty (will be handed in for participation points)

Session 6: February 13, 2014 Why do States Commit to International Treaties?

Questions: How and why do norms spread or diffuse? Why do states ratify international treaties? How can we accommodate traditional understandings of sovereignty with the widespread ratification by states of treaties that appear to undermine their sovereignty?

Consider this case question: Why have so many states ratified the Convention on the Elimination of All Forms of Discrimination against Women,” despite the large number of reservations against the treaty, and the belief that some parts of the treaty may not consistent with domestic cultures and practices?

Required Reading: Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics Chapter 3, “Theories of Commitment,” pp. 57-111.

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Session 7: February 18, 2014 International Law Interpretation and Dispute Resolution,”

Required Reading: Sean Murphy Chapter 4: “International Law Interpretation and Dispute Resolution,” pp. 125-170.

Case: Nicaragua vs. U.S. (World Court Case – read the case). Discuss – Did the US break international law when it funded the groups that mined the harbor of Nicaragua?

Session 8: February 20, 2014: International Law Compliance and Enforcement I.

Questions on compliance: What difference do global norms and institutions make? What do we mean by compliance? How would we know compliance if we saw it? Under what conditions will states comply with global norms and institutions? What are the factors that facilitate compliance and the mechanisms through which compliance is enhanced? For example, is enforcement necessary or at least useful for compliance?

Required Reading: Sean Murphy, Chapter 5 “International Law Compliance and Enforcement” pp. 173-219.

Abram and Antonia Chayes, "On Compliance," International Organization 47:2 (1993), pp. 175-20.

Harold Koh, “Review Essay: Why Do Nations Obey International Law?” Yale Law Review 106:8 (1997), p. 2598-265

Session 9: February 25, 2014: The conditions under which states will comply with international law.

Required Reading: Kal Raustiala and Anne-Marie Slaughter, “International Law, International Relations, and Compliance,” in Handbook of International Relations, edited by Walter Carlsneaes, Thomas Risse and Beth Simmons, (Sage, 2002), pp. 538-558.

Read: Judith Goldstein, Douglas Rivers, and Michael Tomz, “Institutions in International Relations: Understanding the Effects of the GATT and WTO on World Trade,” International Organization 61 (Winter 2007): pp. 37-67.

Chapter 6, “Power, Governance, and the WTO: A Comparative Institutional Approach,” by Gregory Shaffer, in Power and Global Governance, edited by Michael Barnet and Raymond Duvall, pp.

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Case country assignment due in class: Figure out your country’s position regarding the WTO. Is your country a member? Who are its major trading partners, and is the WTO useful for dealing with these trade partners? What is your country’s position on protecting international property rights? Has it ever used the WTO dispute settlement system?

Session 10: February 27, 2014: U.S. Non-compliance with the Torture Convention:

Guest Speaker: Juan Mendez, Special Rapporteur on Torture

Required Reading: Read: Juan’s Mendez report on Guantanamo

Daniel W. Hill "Estimating the Effects of Human Rights Treaties on State Behavior." Journal of Politics 1161 (2010): 1169.

Kathryn Sikkink, “The U.S. and Torture: Does the Spiral Model Work? in From Commitment to Compliance: The Persistent Power of Human Rights. Edited by Thomas Risse, Stephen Ropp, and Kathryn Sikkink (Cambridge: Cambridge University Press, 2013), pp. 145-163.

Session 11: March 4, 2014 Use of Armed Force: Jus ad Bellum

Required Reading: Sean Murphy, chapter 14, pp. 491-515 only.

Case 514: Pew Case Studies: The Kuwait Crisis: Sanctions, Negotiations, and the Decision to go to War,”

UN Charter, http://www.un.org/en/documents/charter/ (Be sure to take careful notes)o Preambleo Ch. I: Purposes (Articles 1-2)o Ch. V: The Security Council (Articles 23-32)o Ch. VI: The Pacific Settlement of Disputes (Articles 33-38)o Ch. VII: Action with respect to threats to the peace, breaches of the peace and acts

of aggression (Articles 39-51)

James Morrow, “When do States Follow the Laws of War?” American Political Science Review Vol. 101: No. 3 (August 2007), pp. 559-572.

Session 12: March 6, 2014 Jus ad Bellum II: Kosovo Case:

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Required Reading: Case 252 “Coercive Diplomacy Before the War in Kosovo: America’s Approach in 1998.”

Session 13: March 11, 2014: Humanitarian Intervention, R2P

Michael Byers and Simon Chesterman, “Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law,” 177-203 in Holzgrefe and Keohane (eds) Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge, 2003).

Thomas Franck, “Interpretation and Change in the Law of Humanitarian Intervention,” 204-231 in Holzgrefe and Keohane (eds) Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge, 2003).

Session 14: March 13, 2014 Laws of War: Jus in Bello:

Sean Murphy, Chapter 14 “Use of Armed Force,” 2nd half: pp. 515-529.

Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic Books, 1977), chapters 16, 18 and 19, (Basic Books, 1977) pp. 251-268; p. 287-327.

International Committee for the Red Cross (ICRC), International Humanitarian Law: Answers to your Questions (ICRC: Geneva, 2002), 1-40.

In-class video: International Humanitarian Law: A Universal Code, 15 minutes

NO CLASS (Spring Break): March 18 and 20, 2014

Session 15: March 25, 2014: Nuclear Weapons and the Use of Force

Required Reading: India Nuclear tests case, #519

Session 16: March 27, 2014 Human Rights Law

Sean Murphy, chapter 10 “Human Rights,” pp. 333-381.

Kathryn Sikkink, “Norm Diffusion from the Global South: Latin America and the Idea of International Human Rights,” Global Governance, Special Symposium (forthcoming)

In class: Youtube video on human rights

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Session 17: April 1, 2014 Debate: Is the U.S. use of drones in Pakistan illegal and/or immoral?

Case issue: What do international norms and international law say about the use of drones as opposed to the use of landmines and chemical weapons? Is the U.S. use of drones in Pakistan illegal and/or immoral?

Required Reading: “Living under Drones: Legal Analysis,” at: http://www.livingunderdrones.org/report-legality/ and Harold Hongju Koh, “How to End the Forever War?” Speech at the Oxford Union May 7, 2013. http://www.lawfareblog.com/wp-content/uploads/2013/05/2013-5-7-corrected-koh-oxford-union-speech-as-delivered.pdf

Session 18: April 3, 2014 Tuesday, October 15: Treatment of Suspected Terrorists and Detainees

Evangelista, Matthew, “Suspected Terrorists as Prisoners and Targets,” in Law, Ethics, and the War on Terror (Polity, 2008), 55-102.

Case 297: The Extraordinary Rendition of Abu Omar: Ethics and the War on Terror Case Paper 3 due in class

Session 19: April 8, 2014: The International Court of Justice Read Statute of the ICJ Case 275 “A Question of Sovereignty: Bahrain, Qatar and the International Court of

Justice” In-class: submit case paper 1 determining how the ICJ should rule In-class: Discussion of Part B of case

Vienna Convention and Angel Beard Case The Vienna Convention on Consular Relations (1961) Case 248: Governor Gilmore and the Execution of Angel Beard

In-class: Submit Case paper 2 In-class: Students receive Part B of Breard case

Harold Hongju Koh Paying “Decent Respect” to World Opinion on Death Penalty, 35 U.C. Davis L. Rev. 1085 (2002)

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Session 20: April 10, 2014 Basics of International Criminal Law & Fact-finding Commissions

Excerpt of Murphy, Sean D. “the crimes” 416-423. Stephen Wilkinson, ‘Standards of Proof in International Humanitarian and Human Rights

Fact-Finding and Inquiry Missions’, (2012) Geneva Academy, pages 1-14 only. Morten Bergsmo & William Wiley, ‘Human Rights Professionals and the Criminal

Investigation and Prosecution of Core International Crimes’, Manual on Human Rights Monitoring (2008), 1-28. (

Session 21: April 15, 2014: The International Criminal Court I

Case: “Establishing an International Criminal Court: The Emergence of a New Global Authority” Pew Case Studies in International Affairs #258

Benjamin Schiff, “River of Justice,” 14-41 in Building the International Criminal Court.

Check out the Council on Foreign Relations interactive timeline of leaders facing international criminal prosecution.

Bartram S. Brown. “Bringing a Case to the ICC: Pathways and Thresholds” in Sarah B. Sewell and Carly Kaysen (eds). The United States and the International Criminal Court: National Security and International Law (3 page chart – will be handed out in class)

Watch the Film: International Criminal Court, Institutional Video, 25 minuteshttp://www.youtube.com/watch?v=UYg0JzsmQ3o

In-class case scenarios In-class lecture on crimes, triggers, jurisdiction and complementarity (ICC PowerPoint

Session 22: April 17, 2014 Simulation: Commissions of Inquiry and the ICC Simulation Scenario

Session 23: April 22, 2014 The International Criminal Court II

Required Reading:

Case 270: The International Criminal Court: Could American Military Officers Be Tried in The Hague?

John R. Bolton, “American Justice and the International Criminal Court,” remarks at the American Enterprise Institute, 3 November 2003, 1-6.

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Watch film, “The Reckoning: Battle for the International Criminal Court,” 60 minutes

Judith Kelley, “Who Keeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements,” American Political Science Review Vol. 101: No. 3 (August 2007), pp. 573-589.

County case assignment due in class: Did your country support the creation of the ICC? Did it ratify the Rome Statute? Why did it ratify the Rome Statute? Has your country signed an Article 98 agreement with the US?

Case Paper 4 due In class role play, convince the President of course of action

Session 24: April 24, 2014: Environmental Law: Case issue: Climate Change—why was it easier to reach agreement on the Ozone Treaty than on a comprehensive treaty for Climate Change?

Robert Keohane and David Victor, “The Regime Complex for Climate Change,” Perspective on Politics, Vol. 9:1 (2011): pp. 7-23.

Joshua Busby, Chapter 4 “Climate Change: The Hardest Problem in the World,” in Moral Movements and Foreign Policy (Cambridge University Press, 2010), pp. 104-150.

Case: “The Negotiations Leading to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer.” Goodman, Allan. Pew Case Studies in International Affairs, #447

1 page assignment due in class: Figure out your country’s position on both the Montreal Protocol and the Kyoto Protocol—did it ratify and support these treaties? Did it file any reservations? Why do you think it adopted the positions it did?

Session 25: April 29, 2014: Should there be a new treaty on Violence Against Women?

Session 26: May 1, 2014: Last day of class –

Case Papers: Detailed Instructions: 3 times during the semester you will be asked to prepare a 2-4 page case paper from three of these five cases below.

Objective: To apply a theory or concept to a real situation. To generate animated class discussion.

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To allow you to explore a problem by sorting out relevant facts, developing logical conclusions and presenting them to your peers.

To familiarize you the problems that real life policy makers face including coping with ambiguity and decision-making in complex situations.

To help you develop your analytical and problem solving skills.

Requirements: Case papers are between 2-4 pages long – see directions below on specific cases (12

point font, double spaced with 1 inch margins). I am not asking you to write how you personally would respond to these cases. I am

asking you to put yourself in the shoes of an international political-legal expert working within the tradition of international law, and to make judgments based on that role. You should first draw on widely shared legal norms, custom and treaties to inform your analysis. Only after that, may you provide personal and/or political commentary on the case the relevant moral and legal standards under discussion. Given this class is about the intermingling of politics and law it may be useful to follow your legal analysis with a political analysis and see how they relate to one another and whether or not your recommendation varies any when political considerations are explicitly taken into account.

Follow the directions for each specific case outlined below.

Evaluation: Evidence of a clear thesis statement that is well supported in a coherent and persuasive

essay that is responsive to the assigned question or topic. Very good writing which includes proper spelling, good grammar and appropriate prose

and uses citation correctly and where needed. Thoughtful engagement of legal concepts while paying attention to political practice.

Case Paper 1: Territorial disputes, Sovereignty and the ICJ After reading part A of the case, write a 2-3 page essay in which you reflect on how you

believe the ICJ will rule in this case (based on your best legal judgment) and explain w

Case Paper 2: The Execution of Angel Beard After reading part A of the case write a 2-3 page essay in which you address the

following question:o Whether or not the US violated its obligations under the Vienna Convention.

In your answer be sure to clarify what US obligations under the Vienna Convention are.

You may want to analyze and assess the arguments made by the US and Paraguay before the ICJ as support for your argument.

Be sure to also address the counter argument to your own. After reading part B, write a short response (of approximately 1 page or more) in which

you either 1) explain what you believe the appropriate balance is between state sovereignty and deference to the Court; or 2) how in the US context a tradition of state’s rights complicates US foreign policy and its ability to honor treaty commitments.

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Case Paper 3: The Extraordinary Rendition of Abu Omar: Ethics and the War on Terror

Write a 2-4 page essay in which you answer the question of whether the struggle against violent Islamic extremism is best understood and addressed as a war (guided by the laws of war and international humanitarian law) or as a particularly virulent form of crime (guided by an international criminal law framework). Be sure to also address what tools are most appropriately used by states in the response. Your answer should draw on the bodies of international humanitarian law, international criminal law and international human rights law and be able to distinguish between them.

Case Paper 4: US Military Personnel and the ICC Write this essay from the perspective of your assigned role (as either Secretary of State,

Secretary of Defense or the Attorney General) and advise the President of the right course of action, as you see it. This should be a persuasive essay in which there is a clear, succinct and easily discernible course of action being advocated for (clear thesis). You must provide convincing evidence and/or arguments to support your position. Be sure to consider both long- and short-term and domestic and international ramifications of the course of action that you are advocating.

Case Paper 5: Should the UN Security Council Refer the case of Syria to the ICC? Write an essay from the point of view of a legal and political advisor to the legal

department of the foreign ministry of one of the current members of the Security Council (Either one of the P-5, or one of the 10 non-permanent elected members). Advocate a clear, succinct and easily discernible course of action (clear thesis), and provide convincing evidence and/or arguments to support your position. You should take both legal and political concerns into account in your memo.

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