SOUTHWESTERN LAW SCHOOL Spring 2015 PUBLIC INTERNATIONAL LAW SYLLABUS… · 2014-12-29 ·...

SOUTHWESTERN LAW SCHOOL

Spring 2015

PUBLIC INTERNATIONAL LAW SYLLABUS, COURSE REQUIREMENTS, AND GRADING CRITERIA

Professor Priya S. Gupta

Email: [email protected]

___________________________

Please note that this syllabus is subject to change as we progress through the course.

Course Description

Public international law is primarily concerned with legal relations between states. In this

course, we will study the nature, sources, and limits of international law and the broader notion

of global governance, while also recognizing the role of non-state actors who are increasingly

brought under its scope. Importantly, we will also analyze the structure of international legal

process. For a U.S. law student unfamiliar with international or comparative law, this course can

be thought of as a combination of ‘international’ constitutional law (the division of power

between nation states), and ‘international’ civil procedure, particularly the legal bases of

jurisdiction a state has to exercise control over other foreign states, their firms and agents, and

foreign nationals.

Therefore, as should be evident from the outset, this course has tremendous practical application

for future attorneys with traditional ‘domestic’ practices, not only to those interested in pursuing

traditional international law careers (diplomacy, advising government agencies, facilitating

international trade, etc.).

In this course, you will be provided with opportunities to:

1. Enhance your historical understanding of your home jurisdiction –the United States—

in relation to international institutions, such as the United Nations, and other treaty

bodies;

2. Gain a foundational understanding of the principles of international law;

3. Develop an appreciation for method (how to approach the study of international law)

and theory (what drives legal change across time);

4. Enhance your legal analytical skills through your individual and our collective

engagements with the class materials and current events.

Course Meetings

Our class will meet Mondays, Wednesdays, and Thursdays from 11:15am – 12:15pm in

the Westmoreland Building, Room W311.

Course Materials

Damrosch & Murphy, Public International Law: Case and Materials (6th ed. 2014).

Additional materials are listed in the Public International Law Reading Schedule that

accompanies this syllabus.

Office Hours/Instructor Availability

Office hours will be on Wednesdays from 3pm – 5pm and by appointment, in BW303.

No appointment is necessary if you come by during office hours.

Class Preparation

Careful preparation is essential for this course. Students are expected to have read the

assigned materials. Class discussion will commence with the assumption that everyone is

thoroughly familiar with the assigned materials. We will discuss suggested ways to prepare and

study for this course during class.

If you are not able to prepare for class on a particular day, you can avoid my calling on

you by notifying me by email or otherwise prior to the start of class (this includes, for example,

simply mentioning to me just before class that you are unprepared and would like to take a pass).

You can choose to opt out of class participation a total of two times. You need not explain or

justify this choice to me.

Attendance

Regular and punctual attendance is required. A student may be administratively

withdrawn from this course if he or she is absent from more than 20% of the regularly scheduled

class sessions. Each student is responsible for keeping track of his or her absences. Attendance

will be taken at the start of class through distribution of an attendance sheet. If you are not in

your seat at the beginning of class and do not personally initial the sign-in sheet at that time, you

are considered absent. The Student Honor Code remains in effect. Students may initial only their

own names, not those of other students. Lack of preparation, early departure, or inappropriate

behavior may result in a student being marked absent.

Grading Criteria and Evaluation

Your grade will be based on a take-home essay exam. We will discuss the exam format

later in the semester.

Grades for this course will be awarded based upon an alphabetical system and will

strictly follow Southwestern’s grading policies. After a grade is awarded for the course, I am

happy to discuss ways to improve a student’s performance. In accordance with law school

policy, however, assigned grades will not, and cannot, be changed except for

mathematical/clerical errors. No grade can be changed, for any reason, ninety days after the final

grade has been posted or the examination has been made available to the student in the

Registration Office, whichever is later.

Special Rules Regarding Electronic Devices

Students must turn off telephones, tablets, etc., at the beginning of class. Any student

seen using such devices during class may be asked to leave or given an absence for the

period.

I encourage you to put away your laptops and use class time to sharpen your analytical

skills and participate in discussions rather than attempt to record every moment of class. You

will be in a better position to do this if you have prepared for class by reading and taking notes,

as we will discuss. In the event that you decide to use your laptop during class, please note that

use of it for non-course related activities is strictly prohibited. Any student caught using their

laptops for non-course related purposes may be asked to leave or given an absence for the

period.

Statement of Reasonable Accommodations

Students who need accommodations due to disabilities should contact the Dean of

Students and Diversity Affairs Office. The office is located in W102 and can be reached at (213)

738-6888 or [email protected].

Recording of class meetings is permitted only if specific authorization is granted by the

Dean of Students and by me. Recording a class without permission is prohibited. If a student is

granted permission, recording is conditional upon the student’s agreement to share any recording

with any classmate who makes a reasonable request.

It is the policy and practice of Southwestern Law School to comply with the Americans

with Disabilities Act of 1990 as amended by the ADA Amendments Act of 2008, Section 504 of

the Rehabilitation Act, and state and local requirements regarding students and applicants with

disabilities. Southwestern will make every effort to provide reasonable accommodations for

students with medical, attentional, psychological, learning, or temporary disabilities.

Accommodations are not provided to give a student an unfair advantage over other

students, but simply to allow a student with disabilities to have an equal opportunity to be

successful.

A student has the responsibility to meet with the Dean of Students and Diversity Affairs

Office as early as possible to discuss his or her request for special accommodations. Students

who do not seek accommodations need not make their disabilities known. Further information

regarding procedures, policies and documentation required is available in the Student Handbook.

Course Outline:

The course topics covered in this class are set forth below. Assigned readings are due

before class. Assignments are subject to change or supplementation.

Please note that class will not meet on February 23 and 25.

I. Introduction to International Law

II. Sources of International Law

A. Custom

B. Treaties

C. Other

III. Statehood

IV. Non-state Actors

A. International & Non-Governmental Organizations

B. Individuals & Corporations

V. Rules on State Responsibility

VI. The ICJ

VII. International Law in US Law and Kiobel

VIII. Human Rights

IX. Use of Force

X. International Criminal Law

Please see the Public International Law Reading Schedule for reading assignments.

Public International Law Reading Schedule - Gupta

Page+

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I. Introduction to International Law

Jack Goldsmith, What Happened to the Rule of

Law? N.Y. Times (Aug. 31, 2013) available at

http://www.nytimes.com/2013/08/31/opinion/w

hat-happened-to

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Falk, New Approaches to the Study of

International Law , 61 Am. J. Int'l L. 477

(1967) [you must download this from

heinonline or Lexis/Westlaw]

477-487 only

1 M

Chapter 1. Nature of International Law 1 1 W

1. International Law as Binding Law 1 1 W

2. Completeness and Coherence in International

Law 20 1 Th

3. Dynamic Change in International Law 34 1 Th

4. Differing Methodological Approaches skip

II. Sources of International Law

A. Custom

Chapter 2. Sources: Customary International

Law 57 2 M

1. Sources and Evidence of International Law

Generally 57 2 M

2. Customary International Law 60 2 M

A. Core Requirements: General Practice and

Opinio Juris 63 2 M

The Paquete Habana 63 2 M

Notes 68 2 M

The Case of the S.S. “Lotus” (France v.

Turkey) 71 2 M

Notes 76 2 M

B. Effect of Treaties on Customary

International Law 79 2 W

North Sea Continental Shelf Cases 79 2 W

Case Concerning Military and Paramilitary

Activities in and Against Nicaragua (Nicaragua

v. United States)

85

2 W

Notes 88 2 W

C. Effect of General Assembly Resolutions on

Customary International Law 92 2 Th

Legality of the Threat or Use of Nuclear

Weapons 92 2 Th

Notes 95 2 Th

D. The Position of “Non-Consenting” States 98 2 Th

Statement of Principles Applicable to the

Formation of General Customary International

Law, Principle 15

98

2 Th

Notes 99 2 Th

E. Jus Cogens (Peremptory Norms) 101 3 M

Fragmentation of International Law 101 3 M

Questions Relating to the Obligation to

Prosecute or Extradite (Belgium v. Senegal) 105 3 M

Jurisdictional Immunities of the State

(Germany v. Italy: Greece Intervening) 107 3 M

Notes 111 3 M

3. The Relationship of Custom and Treaties 114 3 M

B. Treaties

Chapter 3. The Law of Treaties 117 3 W

1. Definition and Governing Law 117 3 W

A. The Vienna Convention on the Law of

Treaties: General Considerations

118 3 W

B. The Vienna Convention as Customary

International Law

119 3 W

2. Conclusion and Entry into Force 120 3 W

A. Existence of a Treaty 120 3 W

Maritime Delimitation and Territorial

Questions (Qatar v. Bahrain)

121 3 W

Jiménez de Aréchaga, International Law in the

Past Third of a Century

125 3 W

Notes 126 3 W

B. Capacity to Conclude Treaties 128 3 W

C. Expression of Consent to Be Bound 129 3 W

1. Persons Considered as Representing States 129 3 W

Vienna Convention on the Law of Treaties,

Article 7

129 3 W

Sinclair, The Vienna Convention on the Law of

Treaties

130 3 W

Notes 131 3 W

2. Methods of Expressing Consent 131 3 W

Notes 132 3 W

D. Obligation Not to Defeat the Object of a

Treaty

134 3 W


Article 18

134 3 W

Notes 135 3 W

3. Reservations 137 3 Th

A. What Is a Reservation? 137 3 Th

Notes 138 3 Th

B. Importance of Reservations 139 3 Th

C. Permissibility of and Objections to

Reservations

141 3 Th

Reservations to the Convention on Genocide 141 3 Th

Notes 146 3 Th


Articles 19–21

147 3 Th

Notes 148 3 Th

United Nations Human Rights Committee, General

Comment 24

3 Th

on Issues Relating to Reservations Made to the

ICCPR

150 3 Th

Observations by the U.S. on General Comment

No. 24

154 3 Th

Guide to Practice on Reservations to Treaties 158 3 Th

Notes 159 3 Th

4. Observance, Application, and Interpretation 161 4 M

A. Observance 161 4 M

B. Application 163 4 M

C. Interpretation 163 4 M


Article 31

164 4 M

Application of the Convention on the

Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Serbia

and Montenegro)

165

4 M

Notes 169 4 M

5. Invalidity, Termination, and Suspension 174 4 W

A. General Provisions 174 4 W

B. Invalidity 176 4 W

1. Ultra Vires Treaties 176 4 W

2. Coercion 177 4 W

3. Conflict with a Peremptory Norm (Jus

Cogens ) 180 4 W

Report of the International Law Commission on

the Work of the Second Part of Its Seventeenth

Session 180 4 W

Notes 182 4 W

C. Termination or Suspension 183 4 W

1. Termination (or Withdrawal) by the Terms of

the Treaty or Consent 183 4 W

2. Termination (or Withdrawal) When the

Treaty Is Silent 185 4 W

United Nations Conference on International

Organization, Commission I: Commentary on

Withdrawal

185

4 W

United Nations Human Rights Committee,

General Comment No. 26 on Issues Relating to

the Continuity of Obligations to the

International Covenant on Civil and Political

Rights 186 4 W

Notes 187 4 W

3. Termination as a Consequence of Breach 190 4 Th



Session 190 4 Th


Article 60 193 4 Th

Application of the Interim Accord of 13

September 1995 (The Former Yugoslav

Republic of Macedonia v. Greece) 194 4 Th

Notes 200 4 Th

4. Termination Due to Impossibility or

Changed Circumstances 204 4 Th



Session 204 4 Th


Articles 61–62 205 4 Th

Gabčíkovo-Nagymaros Project

(Hungary/Slovakia) 206 4 Th

Notes 208 4 Th

D. Effects of Armed Conflict on Treaties 210 5 M

Techt v. Hughes 210 5 M

Partial Award on Economic Loss Throughout

Ethiopia 212 5 M

Draft Articles on the Effects of Armed Conflict

on Treaties 214 5 M

Notes 215 5 M

C. Other Sources

Chapter 4. Other Sources of Law 217

1. General Principles of Law 217

Prosecutor v. Erdemović 217

Notes 226

Schachter, International Law in Theory and

Practice 228

Notes 233

2. Judicial Decisions and Publicists 238

A. Judicial Decisions 238

1. Decisions of the International Court of

Justice 238

2. Decisions of Other International Courts and

Tribunals 241

3. Decisions of National Courts 243

B. Teachings of Highly Qualified Publicists 243

3. Acts of International Organizations 246

A. Decisions of Plenary Organs 246

B. Decisions Directly Binding upon Member

States 250

Talmon, The Security Council as World

Legislature 252

Notes 256

4. Transnational Public Regulation 257 Skip

5. “Soft Law” 263 Skip

6. Unilateral Acts 270

Legal Status of Eastern Greenland (Denmark v.

Norway) 270

Nuclear Tests Case (Australia v. France) 270

Frontier Dispute Case (Burkina Faso/Mali) 275

Guiding Principles Applicable to Unilateral

Declarations of States Capable of Creating

Legal Obligations

276

Notes 277

III. Statehood

Chapter 5. States 281

1. The Determination of Statehood 282

A. The Traditional Requirements 283

Montevideo Convention on the Rights and

Duties of States 283

Notes 284

1. Requirement of a Permanent Population and

Defined Territory 288

Statement of U.S. Representative Philip Jessup

to the U.N. Security Council Regarding the

Admission of Israel to the United Nations 288

Notes 290

2. Requirement of a Government 291

Report of the International Committee of Jurists

Entrusted by the Council of the League of

Nations with the Task of Giving an Advisory

Opinion upon the Legal Aspects of the Aaland

Islands Question

291

Notes 292

3. Requirement of Capacity to Engage in

Relations with Other States 293

B. Additional Contemporary Requirements? 294

European Community Declaration on the

“Guidelines on the Recognition of New States

in Eastern Europe and in the Soviet Union” 294

Notes 295

C. Case Study: Dissolution of the Former

Yugoslavia 296

European Community Declaration on

Yugoslavia and on the Guidelines on the

Recognition of New States

297

Conference on Yugoslavia Arbitration

Commission Opinion No. 4 on International

Recognition of the Socialist Republic of

Bosnia–Herzegovina by the European

Community and Its Member States

298

Notes 300

D. Prohibitions on Recognizing Statehood 303

Question Concerning the Situation in Southern

Rhodesia 303

Notes 304

2. The Principle of Self-Determination of

“Peoples” 307

A. Decolonization 310

B. Foreign Occupation 312

C. Political Participation and Potential

“Remedial Secession” 312

Reference re Secession of Quebec 312

Notes 320

3. Entities with Special Status 321

A. The State of the Vatican City and the Holy

See 321

B. Palestine 323

C. Taiwan 325

D. Hong Kong and Macao 328

E. Other Types of Sui Generis Entities 330

4. Recognition of Governments 332

A. Criteria for Recognizing Governments 332

Memorandum from the Secretary-General to

the President of the Security Council on the

Legal Aspects of the Problem of Representation

in the United Nations

333

Notes 334

Acevedo, The Haitian Crisis and the OAS

Response: A Test of Effectiveness in Protecting

Democracy

335

Notes 337

Murphy, Democratic Legitimacy and the

Recognition of States and Governments 338

Notes 345

B. Is Recognition Necessary? 347

Statement of Secretary of Foreign Relations of

Mexico Estrada 347

Notes 348

C. Unrecognized Governments 351

1. Capacity of Unrecognized Governments to

Bind the State ... 351 Tinoco Claims Arbitration

(Great Britain v. Costa Rica)

351

Note 352

2. Capacity of an Insurgent Authority in

Control of Specific Territory 352

3. Unrecognized Governments in Municipal

Law 353

Salimoff & Co. v. Standard Oil 353

National Petrochemical Co. of Iran v. M/T Stolt

Sheaf 354

Notes 355

4. Termination of Recognition 358

Statement of the United States: U.S.

Normalizes Relations with People’s Republic

of China

358

Notes 359

5. Acquisition and Delimitation of Territory 359

A. Acquisition of Territory 359

1. Title by Discovering or Occupying Terra

Nullius 360

2. Title by Military Conquest 362

Security Council Resolution Concerning Iraq’s

Attempted Annexation of Kuwait 363

Notes 363

3. Title by Treaty of Cession 365

4. Title by State Succession 365

5. Title Based on Longstanding Effective and

Peaceful

Possession (Prescription) 366

Island of Palmas Case (United States v. The

Netherlands) 366

Notes 371

B. Determining Boundaries: The Principle of

Uti Possidetis Juris 377

Notes 380

C. Settling Boundary Disputes Peacefully 382

IV. Nonstate Actors

A. International & Non-Governmental

Organizations

Reparation for Injuries Suffered in the Service

of the United Nations 392

Notes 399

Prosecutor v. Tadić 408

Notes 411

B. Individuals & Corporations

[TBD]

Chapter 7. Individuals and Corporations

A. Rights of the Individual 439

LaGrand Case (Germany v. United States) 439

Notes 440

B. Obligations of the Individual 441

C. “Genuine Link” and Voluntary Choice as

Limitations 448

Nottebohm Case (Liechtenstein v. Guatemala) 449

Notes 453

3. Transnational Corporations Under

International Law 468

A. Nationality of Corporations 469

Barcelona Traction, Light and Power Company,

Ltd. (Belgium v. Spain) 469

Notes 477

V. State Responsibility

Chapter 8. Rules on State Responsibility 485

1. General Principles of State Responsibility 485

A. General Principles 485

B. The 2001 International Law Commission

Articles on State Responsibility 487

2. Attribution of Conduct to a State 490

Application of the Convention on the

Prevention and Punishment of the Crime of

Genocide (Bosnia & Herzegovina v. Serbia &

Montenegro)

490

Notes 497

3. Breach of an International Obligation 500

A. Fault 500

B. Is Tangible Injury Required? 501

C. Can Third Parties Complain? Erga Omnes

Obligations 502

Barcelona Traction, Light and Power Company,

Ltd. (Belgium v. Spain) 504

Notes 505

4. Circumstances Precluding Wrongfulness 506

Rainbow Warrior (New Zealand v. France) 507


(Hungary/Slovakia) 511

Notes 514

5. Reparation for the Breach of an International

Obligation 517

Notes 518

6. Countermeasures 521


(Hungary/Slovakia) 521

Notes 523

VI. The ICJ

Chapter 9

4. The International Court of Justice 552

A. Structure of the International Court 554

Murphy, The International Court of Justice 554

Notes 556

B. Jurisdiction and Admissibility in

Contentious Cases 559

1. Jurisdiction Based on Joint Referral 559

2. Jurisdiction Based on Forum Prorogatum 560

3. Jurisdiction Based on a Treaty 561

Armed Activities on the Territory of the Congo

(New Application: 2002) (Democratic Republic

of the Congo v. Rwanda) 561

Notes 565

4. Jurisdiction Based on Declarations Accepting 566

Compulsory Jurisdiction

Restatement of the Law (Third), The Foreign

Relations Law of the United States § 903,

Reporter’s Note 2 (1987)

569

Notes 570

Military and Paramilitary Activities in and

Against

Nicaragua (Nicaragua v. United States) 572

Notes 576

5. Admissibility of the Claim 578


Against

Nicaragua (Nicaragua v. United States) 578

Statement of the Legal Adviser of the State

Department, Abraham D. Sofaer, to the Senate

Foreign Relations Committee 581

Notes 583

C. Ancillary Issues in Contentious Cases 584

1. Provisional Measures of Protection 585

Application of the International Convention on

the Elimination of All Forms of Racial

Discrimination (Georgia v. Russia) 585

Notes 590

2. Non-Appearance 591

3. Intervention 592

4. Counter-Claims 593

5. Finality of Judgments 595

Request for Interpretation of the Judgment of

15 June 1962 in the Case Concerning The

Temple of Preah Vihear (Cambodia v.

Thailand)

595

6. Compliance 596

D. Advisory Opinions 598

1. Background 598

2. Jurisdiction 599

3. Discretion Not to Answer the Question 601

Accordance with International Law of the

Unilateral Declaration of Independence in

Respect of Kosovo

602

4. Utility of Advisory Opinions 608

VII. International Law in U.S. Law

Chapter 10. International Law in National Law 621

1. General Considerations 621

2

.

Customary International Law in U.S. Law 623

A. “Law of Nations” in the Early American

Republic 623

Trial of Gideon Henfield 623

Ware v. Hylton 624

Notes 625

B. Customary International Law as a Source

of U.S. Law 626

The Paquete Habana 626

Henkin, International Law as Law in the

United States 626

Restatement of the Law (Third), The

Foreign Relations Law of the United States

(1987)

627

Notes 628

Sosa v. Alvarez–Machain 630

Notes 631

United States v. Dire 633

Notes 640

C. Relationship of Law of Nations to Other

Sources of U.S. Law 642

Henkin, The Constitution and United States

Sovereignty: A Century of Chinese

Exclusion and Its Progeny

642

Notes 645

3

.

Treaties in U.S. Law 647

A. The Constitutional Framework 647

United States Constitution 647

Notes 647

B. Constitutional Limitations on the Treaty

Power 648

Missouri v. Holland 648

Notes 651

C. The Later-In-Time Rule 654

Whitney v. Robertson 654

Breard v. Greene 655



§ 115 (1987)

657

Notes 658

D. Self-Executing and Non-Self-Executing

Treaties 659

Foster v. Neilson 659

Medellín v. Texas 660

Notes 679

E. Interpreting Treaties 684

Hamdan v. Rumsfeld 684

Notes 687

F. Suspension or Termination of Treaties 688

Henkin, Foreign Affairs and the U.S.

Constitution 688

Notes 690

4

.

Other International Agreements in U.S. Law 692



§ 303

692

A. Congressional-Executive Agreements 693


Constitution 693

Notes 695

B. Sole Executive Agreements 698

United States v. Belmont 698


Constitution 700

Notes 700

5. International Law Before U.S. Courts 702

A. Political Question Doctrine 702

B. The Act of State Doctrine 703

Banco Nacional de Cuba v. Sabbatino 703

Notes 708

C. International Law in U.S. Constitutional

Interpretation 713

Roper v. Simmons 714

Notes 716

6. International Law in the National Law of

Other States 717

Constitution of the Republic of South Africa 718

Notes 719

Kadi and Al Barakaat Int’l Foundation v.

Council and Commission 725

Notes 729

Kiobel

VIII. Human Rights

[Case Study ]

Chapter 13. Human Rights 915

1. Foundations of Human Rights Law 915

A. Overview of History and Structure 915

Buergenthal, The Evolving International

Human Rights System 916

Notes 918

IX. Use of Force

Chapter 15. Use of Force 1087

1. Use of Force Prior to the U.N. Charter 1087

A. Availability of the Resort to War 1087

Oppenheim, International Law 1088

Notes 1089

B. Regulation of Coercive Measures Short of

War: Forcible

Reprisals 1090

Naulilaa Incident 1090

Notes 1091

C. Self-Defense 1091

The Caroline 1092

Notes 1093

D. Steps Toward Outlawing of War 1093

Convention Respecting the Limitation of the

Employment of Force for the Recovery of

Contract Debts

1093

Covenant of the League of Nations 1094

Bowett, The Law of International Institutions 1094

Notes 1095

General Treaty for the Renunciation of War

(Kellogg-Briand Pact) 1096

Notes 1096

E. Criminalizing Resort to War: Nuremberg 1097

Judgment of the International Military

Tribunal 1098

Notes 1099

2

.

U.N. Charter Prohibition on Use of Force 1100

A. Basic Prohibition on Use of Force 1101

Charter of the United Nations, Article 2(4) 1101


Practice 1101

Notes 1103

President Harry Truman, Annual Report to

Congress (1950) 1103

Friedmann, The Changing Structure of


General Assembly Resolution on Principles

of International Law Concerning Friendly

Relations and Co-Operation Among States

in Accordance with the Charter of the

United Nations

1104

General Assembly Resolution on the

Definition of Aggression 1106

Schachter, The Right of States to Use

Armed Force 1107

Notes 1107

Henkin, How Nations Behave 1110

Notes 1111

B. Indirect Use of Force 1112



Brownlie, International Law and the Use of

Force 1113

Notes 1113

C. Threat of Force 1114


Practice 1114


Weapons 1115

Arbitral Award Between Guyana and

Suriname 1116

Notes 1117

D. Consent to Military Intervention 1118


Against Nicaragua (Nicaragua v. United

States)

1118


Armed Force 1118

Communication from the President of the

United States Concerning the Deployment

of United States Forces to Panama on

December 20, 1989

1119

Notes 1120

3

.

Exception to the Prohibition: Self-Defense 1121

A. Self-Defense “If an Armed Attack

Occurs” 1121

Charter of the United Nations, Article 51 1121



States)

1122

Notes 1130


Practice 1134

B. Rescue of Nationals Abroad as Self-

Defense 1137

Brownlie, International Law and the Use of

Force by States 1137

Friedmann, United States Policy and the

Crisis of



Practice 1138

Notes 1138

C. Anticipatory or Preemptive Self-Defense 1140

Jessup, A Modern Law of Nations 1140



Henkin, How Nations Behave 1141


Armed Force 1141

Gardner, Commentary on the Law of Self- 1143

Defense

Notes 1143

D. Self-Defense Against Non-State Actors 1147

E. Collective Self-Defense Organizations 1150

Notes 1152

4

.

Controversial Uses of Force for Non-

Defensive Purposes 1152

A. Humanitarian Intervention;

Responsibility to Protect 1152


Practice 1152

Note on NATO’s Intervention in Kosovo 1154

U.N. General Assembly World Summit

Outcome 1158

Implementing the Responsibility to Protect:

Report of the Secretary-General 1159

Chemical Weapon Use by Syrian Regime:

UK Government Position 1160

Notes 1161

B. Intervention in Support of Democracy or

Self-Determination 1164

Reisman, Coercion and Self-Determination:

Construing

Charter Article 2(4) 1164

Schachter, The Legality of Pro-Democratic

Invasion 1165



States)

1166

Notes 1167

5

.

Use of Force and the Security Council 1168

A. Chapter VII: Original Scheme and Its

Historical Evolution 1169

Charter of the United Nations, Chaper VII 1169

Note on Evolution of U.N. Collective

Security 1170

B. Examples of Security Council Responses

to Threats to the Peace 1171

1. Korea (1950–53) 1172

Notes 1173

2. Iraq (1990–2002) 1174

U.N. Security Council Resolution 678 1175

Notes 1176


Notes 1180

3. Iraq (2002–2005) 1183


Taft & Buchwald, Preemption, Iraq, and


Notes 1188

4. Libya (2011) 1190


Notes 1192

6

.

U.N. Peacekeeping 1192

A. Emergence of Peacekeeping Operations 1192

B. Examples of Peacekeeping Operations 1195

1. Arab-Israeli Conflict (1956–) 1195

2. Congo (1960–64) 1197

Notes 1198

3. Cambodia (1991–93) 1199

C. Complex Operations: Peacekeeping and

Enforcement 1200

1. Somalia (1992–95) 1200

Security Council Resolution 794 1201

Notes 1202

2. Rwanda (1993–94) 1204

Report of the Independent Inquiry into the

Actions of the United Nations During the

1994 Genocide in Rwanda

1206

3. Former Yugoslavia (1991–95) 1207

Notes 1209

4. Democratic Republic of the Congo

(1999–) 1210


Notes 1214

7

.

Use of Force and Regional Organizations 1214

A. Regional Organizations and the U.N.

Charter 1214

Charter of the United Nations, Chapter VIII 1214

Schachter, Authorized Uses of Force by the

United Nations and Regional Organizations 1215

B. NATO and the League of Arab States 1216

C. Inter-American System 1217

The Cuban Missile Crisis, 1962 1218

Resolution on the Adoption of Necessary

Measures to Prevent Cuba from Threatening

the Peace and Security of the Continent 1219

Meeker, Defensive Quarantine and the Law 1219

Notes 1220

D. African Union 1221

E. Sub-Regional Organizations 1223

1. Association of South-East Asian Nations 1223

(ASEAN)

2. Economic Community of West African

States (ECOWAS) 1223

3. Organisation of Eastern Caribbean States

(OECS) 1224

8

.

Law of Armed Conflict and Control of

Weapons 1225

A. Law of Armed Conflict 1225

1. Overview 1225


Weapons 1228

Notes 1229

2. International and Non-International

Armed Conflict 1232

Notes 1234

3. Prohibited Methods of Warfare 1234

Western Front, Aerial Bombardment and

Related Claims, Partial Award—Eritrea’s

Claims

1236

Notes 1240

4. Prohibited Means of Warfare 1243

Notes 1245

5. Protection of Prisoners of War 1246

Notes 1247

6. Protection of Civilians 1248

a. Enemy Aliens and Property 1248

b. Occupied Territory 1250

Notes 1251

c. Sexual Violence 1252

Central Front Partial Award—Ethiopia’s

Claims 1254

Notes 1256

7. Armed Conflict at Sea 1258

8. Armed Conflict and Environmental

Protection 1259

Notes 1259

B. Arms Control and Disarmament 1260

1. Chemical and Biological Weapons 1261

Notes 1262

2. Nuclear Weapons 1262

Notes 1264

C. Law of Armed Conflict in the Internet Era 1266

Tallinn Manual on the International Law

Applicable to Cyber Warfare 1267

Notes 1268

X. International Criminal Law

1. The International Criminal Court 1328

A. Background, Structure and Jurisdiction 1328

1. Creation 1328

2. Jurisdiction 1328

3. Limits on Jurisdiction 1330

4. Initiation of an Investigation 1331

5. Trials and Appeals 1331

6. Current “Situations” 1332

7. Operating Rules and Budget 1332

Notes 1332

B. Case Study: War Crimes in Darfur, Sudan 1334

Security Council Resolution 1593 1334

Warrant of Arrest for Omar Hassan Ahmad Al

Bashir 1335

Notes 1339

C. The United States and the International

Criminal Court 1340

U.S. Policy Toward the International Criminal

Court:

Furthering Positive Engagement 1341

Notes 1351

SOUTHWESTERN LAW SCHOOL Spring 2015 PUBLIC INTERNATIONAL LAW SYLLABUS… · 2014-12-29 ·...

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Transcript of SOUTHWESTERN LAW SCHOOL Spring 2015 PUBLIC INTERNATIONAL LAW SYLLABUS… · 2014-12-29 ·...