International Law

This page gives the syllabus for an upper-level seminar I taught at Haverford College in Fall 2016: "International Law: History, Structure, Principles." For midterm evaluations of this course, click here.

INTERNATIONAL LAW: HISTORY, STRUCTURE, PRINCIPLES

International law is a system of norms by which states regulate their treatment of each other and of each other’'s citizens. But many say that it is nothing more than diplomats making promises they intend to break at the first opportunity. Are they right, or can international law help bring order, peace, and justice to world affairs? This course will help students answer this question by exploring the history, structure, and principles of international law. We focus on its scope, sources, subjects, content, enforcement mechanisms, and authority compared to domestic law.

Some Major Questions about International Law

Do We Live under the Rule of International Law? Should We Take a Different Attitude toward the Rule of International Law than toward the Rule of Municipal Law?

Are the Primary Subjects of International Law States, or Individuals? Which Should Be Its Primary Subjects?

International Customs and the Decisions of International Courts Are Both Important Sources of Public International Law. But How Much Authority Should Such Law Have When Those

Customs Seem Unjust, Or Those Courts Thoroughly Unrepresentative?

INTERNATIONAL LAW: HISTORY, STRUCTURE, PRINCIPLES

Prof. Thomas J. Donahue

POLSH317/PEACH 317

Haverford College, Fall 2016

Th 1:30-4:00

Classroom: KINSC East Wing E115

Mailbox: Faculty Mailroom in Hall Building

Office Hours: W 2-4pm, CPGC Café in Stokes; or by appointment

E-mail: tjdonahueAThaverford.edu

International law is a system of norms by which states regulate their treatment of each other and of each other’s citizens. Its underlying hope is that by setting a law for states and peoples, there will be more peace, order, and justice in world politics than if there were no such law. This course seeks to introduce students to the history, structure, and principles of international law. We begin by examining the history of international law as a system of norms accepted by states, from its origins in tacit conventions, treaties, and the law of nations to the highly complex system of norms that it is today. We look at the history of various conventions and practices that try to introduce a modicum of peace and order into international relations, giving special attention to international law as one such practice. We will look equally at histories that see international law as a force for good, and histories that see it as serving and entrenching the hegemony of powerful states over all others, or as a tool for colonial injustice and oppression. We then turn to examining the structure of international law: its scope, sources, content, interpreters, and enforcers. We will examine the relations between international law and domestic law, and how much authority either should have over the other. After that, we turn to scrutinizing the many sources of both public and private international law, and their varying degrees of legal authority: customary law, treaties, UN conventions, etc. We then move to examining the subjects of international law: states, insurgents, national liberation movements, international organizations, and individuals. We look at the rules for the recognition of such subjects, and their powers, immunities, and duties under international law. We look at the conditions under which states and individuals are responsible for violations of international law, and the means of settling disputes over what international law requires. After that, we survey some main fields of public international law, including international economic law, the laws of war, and human rights law. We conclude by examining the principles underlying international criminal law, and the collective responsibility attributed by international law to all citizens for actions taken by their state.

The course is a small, research-intensive seminar. Enrollment will be strictly capped at 15 students. “Research-intensive” means that we will intersperse the substantive readings and discussion with readings and discussion of problems about doing research, posing a research problem, solving the problem, and writing up the results, drawn from Wayne Booth et al.’s The Craft of Research.

Course Requirements. To earn full credit, you must:

(1) Either attend the special make-up session on the evening of Monday September 12, or submit via e-mail one of your six response papers before the beginning of that session.

Participate in class discussion. I know many people find this daunting. Nevertheless, try. One main aim of the course is to help you improve in argument.

(2) Submit 6 weekly response papers. Each week, you may submit a paper, of not more than 350 words, that examines some thesis that that week’s reading has argued. The paper may criticize the argument by which the reading defends the thesis, mount its own argument to refute the thesis, or mount its own argument to defend the thesis. For full credit, you need only submit 6 such papers.

(3) Submit a paper proposal. You are required to submit, in Week 8, a proposal for your final paper. The proposal should state a question concerning one of the topics covered in the course, say why the question is important, state your answer to the question (i.e., your thesis), give the key reasons by which you will defend the thesis, state two serious objections to your thesis, and state how you will respond to the objections. The proposal should be not more than 800 words long.

(4) Submit a final paper. You are required to submit, on the last day of exams, a final paper. The paper should state a question concerning one of the topics covered in the course, say why the question is important, state your answer to the question (i.e., your thesis), defend the thesis with argument, state two serious objections to your thesis, and respond to the objections. The paper should be not more than 5,000 words long.

Course Assessment. Course marks will be computed on the following distribution: Attend Sept 12 Make-up or Submit Early Response: 5%; Class Participation: 20%; 6 Response Papers: 36% (6 % each); Paper Proposal: 15%; Argumentative Paper: 24%

Course Objectives. By the end of the course, students should

(1) Have become familiar and able to correctly use such key concepts of international law as states, recognition, sovereignty, immunity, customary international law, jus cogens, municipal law, collective responsibility, etc. ;

(2) Have strengthened their skills in applying these concepts to current debate about the problems of international law;

(3) Have honed their ability to specify how and why specific values clash when dealing with problems of making, interpreting, and enforcing international law;

(4) Have improved their skills in specifying the disagreement over the relevant facts involved in disagreement over these problems of international law.

(5) Have learned how to accurately describe the structure of a theory, specifying its key concepts, its main claims, the basic model underlying it, and the question to which it is an answer;

(6) Have honed their skills in specifying the structures of arguments, breaking them into premises-axioms, middle premises-lemmas, and conclusions-theorems;

(7) Have improved their ability in distinguishing between similar concepts denoted by the same word and spotting equivocations;

(8) Have honed their skills in evaluating and challenging the premises of an argument with rational and well-ordered arguments of their own;

(9) Have worked out for themselves a detailed and developed argument arguing a thesis about one of the questions covered in the course.

(10) Have honed their skills in the craft of research, mastering and applying concepts like narrowing down a topic, asking a research question, posing a research problem for a specific audience, solving a research problem, drafting a research paper, revising with an audience in mind.

E-mail policy. You are welcome to e-mail me with questions about the course. I try to answer e-mails within 48 hours of receipt. Don’t expect an answer before then. Fast usually means shoddy.

Academic Dishonesty: Don’t do it! Here is Haverford College's official language on the subject:

"A Note from Your Professor on Academic Integrity at Haverford:

"In a community that thrives on relationships between students and faculty that are based on trust and respect, it is crucial that students understand a professor’s expectations and what it means to do academic work with integrity. Plagiarism and cheating, even if unintentional, undermine the values of the Honor Code and the ability of all students to benefit from the academic freedom and relationships of trust the Code facilitates. Plagiarism is using someone else's work or ideas and presenting them as your own without attribution. Plagiarism can also occur in more subtle forms, such as inadequate paraphrasing, failure to cite another person’s idea even if not directly quoted, failure to attribute the synthesis of various sources in a review article to that author, or accidental incorporation of another’s words into your own paper as a result of careless note-taking. Cheating is another form of academic dishonesty, and it includes not only copying, but also inappropriate collaboration, exceeding the time allowed, and discussion of the form, content, or degree of difficulty of an exam. Please be conscientious about your work, and check with me if anything is unclear."

I may, at any time, use tools like turnitin.com to detect plagiarism.

Students with Disabilities, Special Needs, or Having Difficulties: Here is the Haverford Office of Access and Disability Services' Statement, which I affirm:

"Haverford College is committed to supporting the learning process for all students. Please contact me as soon as possible if you are having difficulties in the course. There are also many resources on campus available to you as a student, including the Office of Academic Resources (https://www.haverford.edu/oar/) and the Office of Access and Disability Services (https://www.haverford.edu/access-and-disability-services/). If you think you may need accommodations because of a disability, you should contact Access and Disability Services at hc-ads@haverford.edu. If you have already been approved to receive academic accommodations and would like to request accommodations in this course because of a disability, please meet with me privately at the beginning of the semester (ideally within the first two weeks) with your verification letter."

Writing response papers: Here are guidelines on what I’m looking for, and what I’m not looking for, but other teachers might be: https://sites.google.com/site/tjdonahu/home/writing-response-papers

Timeline of Events and Ideas: https://sites.google.com/site/tjdonahu/home/classics/timeline

How to understand and use theories: Puzzled? You're not alone! Even the professionals find this difficult. Click here for some tips on how to do it: https://sites.google.com/site/tjdonahu/home/using-theories

REQUIRED BOOKS

Antonio Cassese, International Law, 2nd ed (Oxford UP, 2005)

Vaughan Lowe, International Law (Oxford UP, 2007)

W. C. Booth, G. G. Colomb, and J. M. Williams, The Craft of Research, 3rd ed (UChicago Press, 2008)

RECOMMENDED BOOKS

The Oxford Handbook of the History of International Law, ed. B. Fassbender and A. Peters (Oxford UP, 2012)

The Philosophy of International Law, ed. S. Besson and J. Tasioulas (Oxford UP, 2010)

Malcolm N. Shaw, International Law, 7th ed (Cambridge UP, 2013)

Anthony Weston, A Rulebook for Arguments, 4th ed (Hackett, 2008)

Hugh Thirlway, The Sources of International Law (Oxford UP, 2014)

OTHER USEFUL MATERIALS FOR LEARNING ABOUT INTERNATIONAL LAW, OR DOING RESEARCH ON LAW, POLITICS, OR PHILOSOPHY

United Nations Audiovisual Library of International Law

The American Society for International Law's Electronic Resources Guide

JSTOR (especially for the database of law journals)

Worldwide Political Science Abstracts

Philosopher's Index

Stanford Encyclopedia of Philosophy

EconLit

GUIDES TO WRITING GOOD PAPERS: THE PROSE, THE PROBLEM, AND THE ARGUMENT

[1] Richard Lanham's Paramedic Method.

It transforms slow-starting sentences with obscure subjects into sentences with clear actors and actions.

[2] The Bennett rules for writing decent prose in theoretical papers.

Jonathan Bennett says: Prefer verbs to nouns. Prefer adverbs to adjectives. Avoid intensifiers ( like "very" or "extremely"). Use sparingly the abstract nouns--big words from Latin and Greek ending with "--ation," "--ity," "-ism," "-ology," "-nomy," etc.--; don't cram a sentence full of them.

[3] Joseph M. Williams and Joseph Bizup, Style: Lessons in Clarity and Grace (Pearson, 2013)

Explains why and when to use Lanham's Method and Strunk and White's rules; and when to break them. Explains how to organize information in a sentence: put the familiar at the front, and the new at the end. Also explains how to make paragraphs coherent: each paragraph should have a point sentence articulating its main point, and this should come either at the end of the paragraph's introductory sentence, or at the paragraph's end.

SCHEDULE

Session 1. (Week 1, September 1). Introductory Session. (1) Key Features of the System of International Law. (2) What’s the Point of Research?

Optional background readings and video:

Antonio Cassese, “The main legal features of the international community,” International Law, 2^nd ed (Oxford UP, 2005): 3-21

Wayne Booth et al, “Research, Researchers, and Readers,” Craft of Research, pp. 1-27

Judge Sir Christopher Greenwood, "Can International Law Change the World?" Lecture at the LSE of 19 February 2009

PART 1. HISTORY OF INTERNATIONAL LAW

Session 2. (Week 2, September 8). Survey Histories of International Law: Optimistic, Critical, Pessimistic. (1) An Optimistic Survey History of International Law: The

View from Cosmopolitan Liberalism. (2) A Critical, Post-colonial Survey History. (3) Carl Schmitt’s History of International Law: Pro-European, Anti-Cosmopolitan

Pessimism.

Antonio Cassese, “The historical evolution of the international community,” International Law, 2^nd ed (2005): 22-45

Antony Anghie, “The Evolution of International Law: Colonial and post-colonial realities,” Third World Quarterly 27 (2006): 739-753

Louiza Odyseos and Fabio Petito, “Introduction: The International Political Thought of Carl Schmitt,” in The International Political Thought of Carl Schmitt, ed. Odyseos and Petito (Routledge, 2007): 1-18

So you'd like to know more: Stephen C. Neff, “A Short History of International Law,” in International Law, ed. Malcolm D. Evans (Oxford UP, 2010): 3-24

Session 3. (SPECIAL THANKSGIVING MAKE-UP SESSION, Monday September 12, 7:30-10PM, Location: Hall 007). The History of Actors and Subjects in International Law

Jörg Fisch, “Peoples and Nations,” Oxford Handbook of the History of International Law, pp. 27-48

Antonio Cassese, “States: Rise and Decline of the Primary Subjects of the International Community,” Oxford Handbook of the History, pp. 49-70

Janne E. Nijman, “Minorities and Majorities,” Oxford Handbook of the History, pp. 95-119

So you'd like to know more...

Michel Seymour, "Peoples, self-determination, and secession," 2012 Lecture to the Association for the Study of Ethnicity and Nationalism

Hurst Hannum, "The International Law of Self-Determination [of Peoples]" Videotaped Lecture in the UN Audiovisual Library of International Law (Good on the

history of the norm of self-determination of peoples)

Session 4. (Week 3, September 15). (1) The History of Actors and Subjects, Continued. (2) The History of International Law’s Legitimation and Challenge to Practices

Anne Peters and Simone Peter, “International Organizations: Between Technocracy and Democracy,” Oxford Handbook of the History of International Law, pp. 170-197

Arthur Eyffinger, “Diplomacy,” Oxford Handbook of the History, pp. 813-839

Andrew Fitzmaurice, “Discovery, Conquest, and Occupation of Territory,” Oxford Handbook, pp. 840-861

So you'd like to know more...

Jose Alvarez, "International Organizations as Law-Makers," Videotaped Lecture in the UN Audiovisual Library of International Law

Eileen Denza, "Diplomatic and Consular Relations," Videotaped Lecture in the UN Audiovisual Library of International Law

Malcolm Shaw, "The Acquisition of Title to Territory," Videotaped Lecture in the UN Audiovisual Library of International Law

Session 5. (Week 4, September 22). (1) The History of International Law’s Legitimation and Challenge to Practices. (2) Research: From Topics to Questions to Problems

Seymour Drescher and Paul Finkelman, “Slavery,” Oxford Handbook of the History of International Law, pp. 890-916

Wayne C. Booth et al, “From Topics to Questions,” The Craft of Research, pp. 29-50

Booth et al, “From Questions to Problems,” The Craft of Research, pp. 51-67

DEADLINE TO HAVE SUBMITTED A TOTAL OF TWO RESPONSE PAPERS

PART 2. THE SCOPE, SOURCES, SUBJECTS, AND MEANS OF SETTLING INTERNATIONAL LAW

Session 6. (Week 5, September 29). (1) Presentation on Sources for Research on International Law: Margaret Schaus, Lead Research and Instruction Librarian, Haverford

College. (2) The Scope of International Law, and Its Relations with Municipal Law. (3) The Rule of International Law.

Eileen Denza, "The Relationship between International and National Law," in International Law (4th ed.), ed. M. Evans (Oxford UP, 2014): 413-440

Antonio Cassese, “The Implementation of International Rules within National Systems,” International Law, pp. 213-239

Jeremy Waldron, “The Rule of International Law,” Harvard Journal of Law & Public Policy 30 (2006)

So you'd like to know more:

Judge Sir Christopher Greenwood, "The Relationship between International Law and Municipal Law," Videotaped Lecture in the UN Audiovisual Library of International Law

Jack L. Goldsmith and Eric Posner, "International Law and Moral Obligation," The Limits of International Law (Oxford UP, 2006): 185-203

John O. McGinnis and Ilya Somin, "Should International Law Be Part of Our Law?" Stanford Law Review 59 (2007): 1175-1247

Jeremy Waldron, "The Rule of Law," Stanford Encyclopedia of Philosophy (Fall 2016 edition), Edward N. Zalta (ed.)

Jeremy Waldron, "The Concept and the Rule of Law," Lecture of 5 March 2008 at the University of Georgia Law School

Session 7. (Week 6, October 6). (1) The Sources of International Law. (2) Research: From Problems to Sources.

Vaughan Lowe, “How International Law Is Made,” International Law (Oxford UP, 2007): 34-99

Antonio Cassese, "The Hierarchy of Norms in International Law: The Role of Jus Cogens," International Law, pp. 198-212

Booth et al, “From Problems to Sources,” The Craft of Research, pp. 68-83

So you'd like to know more:

- Prof. Christopher Greenwood (as he then was), "The Sources of International Law," Videotaped Lecture in the UN Audiovisual Library of International Law

- Hugh Thirlway, The Sources of International Law (Oxford University Press, 2014)

- Dire Kladi, Special Rapporteur on jus cogens of the International Law Commission, "Making Sense of Higher Law: The Role of Jus Cogens," Lecture of 16 March 2016 at

King's College London

- Samantha Besson, "Theorizing the Sources of International Law," The Philosophy of International Law, ed. S. Besson and J. Tasioulas, pp. 163-186

FALL BREAK

Session 8. (Week 8, October 20). (1) The Subjects of International Law: States, Insurgents, National Liberation Movements, Dependent Territories…and Corporations

and Individuals? (2) Research: Engaging Sources of Arguments.

Malcolm N. Shaw, “The Subjects of International Law,” International Law, READ pp. 142-178 ONLY

Antonio Cassese, “Other International Legal Subjects,” International Law, pp. 124-150

Robert McCorquodale, “The Individual and the International Legal System,” in International Law, ed Malcolm Evans (Oxford UP, 2014): 280-305

Booth et al, “Engaging Sources,” The Craft of Research, pp. 84-102

So you'd like to know more about the types of legal persons in international law...

Andrew Clapham, "Rethinking the Role of Non-state Actors under International Law," Videotaped Lecture in the UN Audiovisual Library of International Law

Session 9. (Week 9, October 27). (1) The Basic Elements and Powers of States under International Law: Territory, Nationality, Recognition, Jurisdiction, State

Immunities. (2) Planning your Research Report.

Vaughan Lowe, “States,” International Law, pp. 136-169

Vaughan Lowe, “Inside the State,” International Law, pp. 170-187

Booth et al, “Planning,” Craft of Research, pp. 177-186

PAPER PROPOSAL DUE!

DEADLINE TO HAVE SUBMITTED A TOTAL OF FOUR RESPONSE PAPERS

So you'd like to know more about the international law of territory and the extent of territorial waters:

Alexis Dudden, "Japan's Island Problem," Dissent (Fall 2014)

So you'd like an overview of the law of state jurisdiction:

Judge Sir Christopher Greenwood, "State Jurisdiction," Videotaped Lecture in the UN Audiovisual Library of International Law

So you'd like to see a dispute over the extent of sovereign immunity from jurisdiction: can a state--some of whose nationals committed an atrocity in a foreign country--be sued in that country's courts for failing to stop the atrocity?

"Congress Overrides Obama's Veto on Sept. 11 Lawsuit Bill," NPR News, 28 September 2016

So you'd like an overview of the law of sovereign immunity from jurisdiction:

Philippa Webb, "The Law of State Immunity: Overview, Specific Aspects and Future Prospects," Videotaped Lecture in the UN Audiovisual Library of International Law

Session 10. (Week 10, November 3). Dealing with Violations of and Disagreement over International Law: Allocating Responsibility, Settling Disputes, and Enforcing the

Law

Antonio Cassese, “International Wrongful Acts and the Legal Reaction Thereto,” International Law (2005), pp. 241-277

John Merrills, “The Means of Dispute Settlement,” in International Law, ed. Malcolm D. Evans (Oxford UP, 2014): 563-588

Antonio Cassese, “Enforcement,” International Law (2005), pp. 296-316

So you'd like to hear about a case of how to allocate state responsibility for breach of international law...

"Investigation Points to Russian Role in Downed Malaysia Airlines Jet [over Ukraine]," "Can Russia Be Held Accountable for Weapons that Took Down Airliner?" both from NPR News, September 28, 2016

So you'd like to know more about the principles of allocating responsibility for breaches of international law...

Kimberley Trapp, "State Responsibility for International Terrorism," Videotaped Lecture in the UN Audiovisual Library of International Law

So you'd like to know more about the means of dispute settlement...

Judge Joan Donoghue, "Lawyering for Peace [Mediation, Inquiry, Arbitration, Adjudication]," Videotaped Lecture in the UN Audiovisual Library of International Law

PART 3. CONTENTS AND PRINCIPLES OF INTERNATIONAL LAW

Session 11. (Week 11, November 10). (1) Principles Governing the Content of International Law. (2) Drafting Your Research Report

Antonio Cassese, “The Fundamental Principles Governing International Relations,” International Law (2005), pp. 46-71

Vaughan Lowe, “The Principles of the International Legal System,” International Law, pp. 100-135

Booth et al, “Drafting Your Report,” Craft of Research, pp. 187-202

DEADLINE TO HAVE SUBMITTED A TOTAL OF FIVE RESPONSE PAPERS

So you'd like to know more about the principles and what they imply and presuppose...

Hurst Hannum, "The International Law of Self-Determination," Videotaped Lecture in the UN Audiovisual Library of International Law

Ronald Dworkin, "A New Philosophy for International Law," Philosophy & Public Affairs 41 (2013): 2-30

Session 12. (Week 12, November 17). The Law of Human Rights and the Law of the Use of Force

Antonio Cassese, “The Protection of Human Rights,” International Law (2005), pp. 375-398

Cassese, “Unilateral Resort to Force by States,” International Law, pp. 354-374

Cassese, “Legal Restraints on Violence in Armed Conflict,” International Law, 399-434

So you'd like to know more about the law of human rights:

Judge Thomas Buergenthal, "A Brief History of International Human Rights Law," Videotaped Lecture in the UN Audiovisual Library of International Law

So you'd like to know more about the law of when armed conflict may and may not be used:

Dapo Akande, "The Prohibition of the Use of Force in International Relations," Videotaped Lecture in the UN Audiovisual Library of International Law

Michael Schmitt, "International Law and the Use of Force (the Jus ad bellum)," Lecture at the US Naval War College

So you'd like to know more about the laws of what may and may not be done in armed conflict:

Marco Sassoli, "Introduction to International Humanitarian Law [the Law of Armed Conflict]," Videotaped Lecture in the UN Audiovisual Library of International Law

Adam Roberts, "The Equal Application of the Laws of War: A Principle under Pressure," Videotaped Lecture in the UN Audiovisual Library of International Law

Henry Shue, "Laws of War," The Philosophy of International Law, ed Besson and Tasioulas (OUP, 2010): 511-529

THANKSGIVING BREAK

Session 13. (Week 14, December 1). (1) International Economic Law. (2) Research: Introductions and Conclusions

Vaughan Lowe, “The Global Economy,” International Law, pp. 188-233

Thomas Pogge, "The Role of International Law in Reproducing Massive Poverty," in The Philosophy of International Law, ed. Besson and Tasioulas (OUP, 2010): 417-435

Booth et al, “Introductions and Conclusions,” The Craft of Research, pp. 232-248

So you'd like to know more:

Gabrielle Marceau, "The General Basic Legal Principles that Underpin the International Trading System," Videotaped Lecture in the UN Audiovisual Library of International Law

Antonio Cassese, “Legal Attempts at Narrowing the North-South Gap,” International Law, pp. 503-527

Thomas Pogge, "Targeting [Supranational] Institutional Human Rights Violations," Lecture of 11 October 2012 at Northwestern University

Session 14. (Week 15. December 8). (1) International Criminal Law. (2) International Law Distributes to Citizens Collective Responsibility For What Their States Do:

When, If Ever, Can That Be Fair? (3) Should States Be Subjects of International Law, Or Just Its Officials?

David Luban, “Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law,” in The Philosophy of International Law, ed. S. Besson and J. Tasioulas

(Oxford UP, 2010): 569-588

James Crawford and Jeremy Watkins, “International Responsibility,” in The Philosophy of International Law, ed. S. Besson and J. Tasioulas (Oxford UP, 2010): 283-298

Jeremy Waldron, “Are Sovereigns Entitled to the Benefit of the International Rule of Law?” European Journal of International Law 22 (2011): 315-343

So you'd like to know more....

Kevin Riordan, "Basic Ideas about International Criminal Law," Videotaped Lecture in the UN Audiovisual Library of International Law

Michael Walzer, “The Moral Standing of States,” Philosophy and Public Affairs 9 (1980): 209-229

FINAL PAPER DUE LAST DAY OF EXAMS AT NOON VIA E-MAIL.