University of Oxford Department of Politics and International Relations. The Function of Law in the International Community

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1 University of Oxford Department of Politics and International Relations The Function of Law in the International Community Hilary Term 2007 Prof Vaughan Lowe and Prof Sir Adam Roberts Wharton Room, All Souls, Wednesdays pm General readings and materials on international law: Malcolm D. Evans (ed.), International Law, 2 nd edn D. J. Harris, Cases & Materials on International Law, 6th ed., 2004 Shirley V. Scott, International Law in World Politics, 2004 Blackstone s International Law Documents (ed. M Evans), 7th ed., 2005 [This text will be available in the Examination Room.] Recent volumes on international law and international politics: J. Goldstein et al. (eds.), Legalization and World Politics, 2001 (special issue of International Organization 54 (2000), issue 3) C. Reus-Smit (ed.), The Politics of International Law, 2004 Philippe Sands, Lawless World, 2005 J. L. Goldsmith and E. A. Posner, The Limits of International Law, 2005 Thomas Schoenbaum, International Relations: The path Not Taken, 2006 Readers: R.J. Beck, A.C. Arend & R.D. Vander Lugt (eds.), International Rules: Approaches from International Law and International Relations, 1996 Harold H. Koh & Oona Hathaway (eds.), Foundations of International Law and Relations, 2004

2 Page 2 of 9 Session 1: The Politics of International Law: An Introduction We will consider the role of international law in international relations generally, and focus upon the emergence of the legal doctrine of the continental shelf as a case-study. Please read:- * David Harris, Cases and Materials on International Law (6 th ed., 2004), chs 1, 2 and pp Please concentrate on understanding the North Sea Continental Shelf cases and related materials at pp and * Robin Churchill and Vaughan Lowe, The Law of the Sea (3 rd ed., 1999), chs 1,8. *Shirley V. Scott, International Law in World Politics, 2004, ch. 5 & 6 (as an introduction) *Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, American Journal of International Law 87 (1993), Kenneth W. Abbott et al., The Concept of Legalization, International Organization 54 (2000), Christian Reus-Smit, The politics of international law, in id. (ed.), The Politics of International Law, 2004, Shirley V. Scott, Is there room for international law in realpolitik?: accounting for the US attitude towards international law, Review of International Studies 30 (2004), Martti Koskenniemi, Carl Schmitt, Hans Morgenthau, and the Image of Law in International Relations, in Michael Byers (ed.), The Role of Law in International Politics, 2000, A.-M. Slaughter, International Law and International Relations, Recueil des Cours de l Académie de la Haye 285 (2000), What is international law? 2. How can States create binding rules of international law when they wish to do so? 3. In what ways may the rules on the continental shelf be given practical effect?

3 Session 2: International Law in National Security Page 3 of 9 We will use the Global War on Terrorism as a case study, and focus particularly on the status and treatment of detainees, including the use of torture and the Guantanamo facility. On torture * (Please read the Memoranda on torture linked to this page) * On Guantanamo * and links therein Cases Hamdan v Rumsfeld et al., (2006) R (Al Skeini) v Secretary of State for Defence, [2005] EWCA Civ 1609, R v Jones et al, [2006] UKHL 16, Military Commissions Act, 2006 (US) General * Harold Koh, Transnational Legal Process, 75 Nebraska Law Review, (1996) * Eyal Benvenisti, Judicial Misgivings Regarding the Application of International Law: An Analysis of the Attitude of National Courts, 4 EJIL 159 (1993) Karen Knop, Here and There: International Law in Domestic Courts, 32 NYU Jo. Int. Law & Politics 501 (2000) Matthias Kumm, International Law in Domestic Courts, 44 Virginia J. Int. Law 19 (2003) Adam Roberts, `Counter-terrorism, Armed Force and the Laws of War, Survival, 44 (Spring 2002), Vaughan Lowe, Clear and Present Danger: Responses to Terrorism, 54 ICLQ (2005) 1. Should domestic courts always apply relevant rules of international law? 2. Should international law prevail over national laws? 3. How do international law rules and arguments affect the distribution of political power within States?

4 Session 3: International Law and the Environment Page 4 of 9 We will use the Kyoto Protocol and the regulation of CFCs as a case study, focusing on the role of non-state actors in driving legal change and the factors affecting international cooperation. On Kyoto:- fpc.state.gov/documents/organization/7938.pdf On CFCs:- F Laird, Just say no to greenhouse gases, US General Accounting Office, Greenpeace, and UNEP, *Catherine Redgwell, International Environmental Law, in Evans, International Law, *Kal Raustiala, The Participatory Revolution in International Environmental Law, 21 Harvard Environmental Law Review (1997) *Jutta Brunée, The United States and International Environmental Law 15 EJIL (2004) Andrew Guman, The Design of International Agreements, 16 EJIL (2005) Andrew Hurrell & Benedict Kingsbury, The International Politics of the Environment: An Introduction, in The International Politics of the Environment (A. Hurrell & B. Kingsbury, eds.), 1992, 1-47 Robyn Eckersley, Soft law, hard politics, and the Climate Change Treaty, in The Politics of International Law (C. Reus-Smit, ed.), 2004, David Freestone and Charlotte Streck, Legal Aspects of Implementing the Kyoto Protocol Mechanisms (2005) 1. Why has the regulation of CFCs been a success while the Kyoto Protocol has failed? 2. Should the USA join the Kyoto Protocol, and if so, why? 3. What roles have been played by Governments, NGOs and international organizations in the development of international environmental law? What is the basis of their authority in this field?

5 Session 4: Use of Force and the Security Council Page 5 of 9 *Attorney-General (UK) on self-defence: htm# _head0 *Prime Minister on Use of Force, < *UN Doc. S/2003/351 of 21 March 2003 (US letter to Security Council at beginning of Iraq war), available on *US National Security Strategy, September 2002, p *C. Gray, The Use of Force and the International Legal Order, in M.D. Evans (ed.), International Law, 2006, ch. 20 *Nicaragua Case (Nicaragua v. United States of America), ICJ Reports 1986, 14, paras , reproduced in D.J. Harris, Cases and Materials on International Law, 6 th ed., 2004, *Dean Acheson, Remarks, in American Society of International Law, Proceedings of the 57 th Annual Meeting (1963), (reprinted in Robert J. Beck, Anthony Clark Arend and Robert D. Vander Lugt (eds.), International Rules, 1996, ) I.L. Claude, Collective Legitimization as a Political Function of the United Nations, International Organization 20 (1966), E. Voeten, The Political Origins of the UN Security Council s Ability to Legitimize the Use of Force, International Organization 59 (2005), I. Johnstone, Security Council Deliberations: The Power of the Better Argument, European Journal of International Law 14 (2003), M.J. Glennon, Why the Security Council Failed, Foreign Affairs 82 (2003), Adam Roberts, `Transformative Military Occupation: Applying the Laws of War and Human Rights, American Journal of International Law 100 (2006), Available at: B. Simma, NATO, the UN, and the Use of Force, European Journal of International Law 10 (1999), 1-22 I. Brownlie, C. Chinkin, C. Greenwood, A.V. Lowe, Memoranda on international law aspects of the Kosovo crisis, International and Comparative Law Quarterly 49 (2000), Does it make sense to speak of an international law on the use of force? 2. Why did the US not rely on pre-emptive self-defence in its letter of March 2003 to the Security Council? 3. What does the inability of the US to secure Security Council approval in March 2003 signify for the role of the Council?

6 Page 6 of 9 Session 5: International Law and International Trade We will focus on the WTO and on the concept of special and differential treatment (SDT). We will consider the India-EU dispute as a case study. General Reading *Andreas Lowenfeld, International Economic Law, 2002, chs 1-4. * and links to *Dispute Settlement System Training Module, Ch. 11. ( m ) * Please look at the Appellate Body Report, WT/DS246/AB/R. * * Joseph Stiglitz & Andrew Charlton, Fair Trade for All, 2005 *Ernst-Ulrich Petersmann, Introduction to the Mini-Symposium on Developing Countries in the Doha Round, 8 J. Int. Econ. Law (2005). *Bernard Hoeckman, Operationalising the Concept of Policy Space in the WTO: Beyond Special and Differential Treatment, 8 J. Int. Econ. Law (2005). *Thomas Franck, Fairness in International Law and Institutions (1995), esp. pp. 3-24, Thomas Fritz, Special and Differential Treatment, Sheila Page & Peter Kleen, SDT, Petros Mavroidis, The General Agreement on Tariffs and Trade (2005), pp Is the correction of extreme economic inequalities a proper role for international law? 2. To what extent should the law constrain the use of trade as an instrument of foreign policy? 3. What should be the goals, and the governing principles, of international trade law? 4. Can a conference of States of widely differing economic, military and political power ever be a satisfactory forum for the creation of a trading system dedicated to the reduction of inequalities between States?

7 Page 7 of 9 Session 6: International Law-Making: Treaties, Custom and Beyond *Raustiala, Kal, Form and Substance in International Agreements, American Journal of International Law 99 (2005), *Alvarez, José E., Hegemonic International Law, American Journal of International Law 97 (2003), *Slaughter, Anne-Marie, Governing the Global Economy through Government Networks, in Michael Byers (ed.), The Role of Law in International Politics, 2000, * Scott Barrett, The North Pacific Fur Seal Treaty and the Theory of International Cooperation, ch. 2 of Environment and Statecraft - The Strategy of Environmental Treaty-Making, (Oxford. 2005) [via ATHENS/Oxford Scholarship On-Line] Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, International Organization 54 (2000), Norman, George & Joel Trachtman, The Customary International Law Game, American Journal of International Law 99 (2005), Stephen Toope, Powerful but unpersuasive. The role of the United States in the evolution of customary international law, in Byers & Nolte, United States Hegemony and the Foundations of International Law, 2003, Vaughan Lowe, The Politics of Law-Making: Are the Method and Character of Norm Creation Changing? in M. Byers (ed.), The Role of Law in International Politics, 2000, John Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, Harvard International Law Journal 37 (1996), Oona Hathaway, Between Power and Principle: An Integrated Theory of International Law, University of Chicago Law Review 72 (2005), Goldsmith, Jack L. & Eric A. Posner, The Limits of International Law, 2005, chs. 2 and 4 1. Why would states choose one form of law-making or another? 2. How does power affect outcomes in the different forms of law-making? 3. Can we expect differences in compliance between different forms of international law?

8 Session 7: Managing International Disputes Reading Page 8 of 9 *Collier and Lowe, The Settlement of International Disputes (1999), Chs. 1 & 2. *John Merrills, The Means of Dispute Settlement, in Evans International Law, pp *James McCall Smith, The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts, 54 International Organization (2000). *Robert Keohane, Andrew Moravcsik and Anne-Marie Slaughter, Legalized Dispute Resolution: Interstate and Transational, 54 International Organization (2000). Andrew Guzman, Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 Virginian Journal of International Law (1988). Richard Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining in the GATT/WTO, 56 International Organization (2002). Chad Brown and Bernard Hockman, WTO Dispute Settlement and the Missing Developing Country Case, 8 Jo. Int. Econ. Law (2005). Sergio Puig de la Parra, Is Investment Arbitration Good or Bad for Developing Countries? The Mexican Experience in the NAFTA Context, 4 Law and Practice of International Courts and Tribunals, (2005). Cesare Romano, The Price of International Justice 4 Law and Practice of International Courts and Tribunals, (2005). 1. What are the desiderata of a dispute settlement system from the point of view (a) of a Government and (b) of a private corporation? 2. Why would a State be willing to submit a dispute with another State to settlement by adjudication? 3. To what extent can the Rule of Law and the principle of the sovereign equality of States be secured by the submission of disputes to settlement by peaceful means?

9 Page 9 of 9 Session 8: International Law in International Politics: Building a Picture *Andrew Hurrell, International Society and the Study of Regimes: A Reflective Approach, in Volker Rittberger (ed.), Regime Theory and International Relations, 1993, *Robert O. Keohane, International Law and International Relations: Two Optics, Harvard International Law Journal 38 (1997), *Harold H. Koh, Transnational Legal Process, Nebraska Law Review 75 (1996), *Benedict Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of International Law, Michigan Journal of International Law 19 (1998), *Martti Koskenniemi, Carl Schmitt, Hans Morgenthau, and the Image of Law in International Relations, in Michael Byers (ed.), The Role of Law in International Politics, 2000, *Nico Krisch, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, European Journal of International Law 16 (2005), Kenneth W. Abbott et al., The Concept of Legalization, International Organization 54 (2000), Wayne Sandholtz and Alec Stone Sweet, Law, politics, and international governance, in Christian Reus-Smit (ed.), The Politics of International Law, 2004, Christian Reus-Smit, The politics of international law, in id. (ed.), The Politics of International Law, 2004, Shirley V. Scott, Is there room for international law in realpolitik?: accounting for the US attitude towards international law, Review of International Studies 30 (2004), Dai, Xinyuan, Why Comply? The Domestic Constituency Mechanism, International Organization 59 (2005), Hedley Bull, The Anarchical Society, 1977, ch. 6 Hersch Lauterpacht, The Function of Law in the International Community, 1933 Louis Henkin, How Nations Behave, 2 nd ed., 1979 F. Kratochwil, Rules, norms, and decisions: on the conditions of practical legal reasoning in international relations and domestic affairs, Cambridge: Cambridge University Press, 1989 Goldsmith, Jack L. & Eric A. Posner, The Limits of International Law, Oxford: Oxford University Press, Is international law a vehicle or an obstacle for the powerful? 2. To what extent can rationalist approaches explain the creation of and compliance with international law? 3. Do we need different theories for different areas of international law?