Contemporary Issues in International Law Syllabus Golden Gate University School of Law Spring - 2011 This is a fourteen (14) week designed to provide students with the opportunity to understand how principles of International Law apply to selected current events in the international arena. The class will meet every Monday afternoon from 1:15 P.M. until 3:55 P.M. commencing Monday, January 10 and finishing Monday, April 25. The course is conducted using a lecture/seminar format where the applicable International Law principle(s) is (are) briefly reviewed and then analyzed by the seminar to determine how and why the principle(s) apply to the selected current issue(s). The syllabus is dynamic and could change in accordance with the nature of international events/crises. The syllabus can also be modified to accommodate issues of particular concern to the seminar group. Substantive material will be presented and grades will be assigned through: (1) classroom lectures and discussions, (2) assigned reading material, (3) student participation in class/seminar discussions, exercises and homework assignments, (4) daily analysis of periodicals and other materials brought in by students (5) student presentations on research projects, and (6) a final 25 page research paper turned in on the final day of class (April 25). Course Information Professor: Warren E. Small, Esq. Phone : (831) 649-1207 (Pebble Beach) (831) 626-2630 (Carmel) Address: P.O. Box 1650 Pebble Beach, CA 93952-1650 E-mail: SFO Office: Text: wessmall@redshift.com Adjunct Faculty Office - 536 Mission, Faculty Center. Office hours by special arrangement. Posted hours will be provided as appropriate. Damrosch, Henkin et al; International Law - Cases and Materials (5th Edition) The Basic Documents Supplement is recommended for ease of reference. 1
Syllabus Meeting/Date Topic 01 January 10 Introduction. Overview of International Law. Comparison between International Law and domestic law. Assignment: Damrosch - Chapter 1; International Law Primer (attached) Research Paper: General discussion of the requirements and guidelines. 02 January 17 No class Observation the birth date of Martin Luther king, Jr. 02 January 24 Sources and Evidence of International Law. Understanding where International Law comes from as opposed to domestic law. Understanding the role/function of United Nations, the International Court of Justice, the International Criminal Court, and international tribunals. Assignment: Damrosch - Chapter 2; skim Supplement Chapters 1 & 2. Article from a periodical students should be prepared to lead the seminar s discussion of their articles. Research Papers: Topics selected and presented for approval 03 January 31 Treaties and Treaty Violations. Understanding treaties as a major source of International Law and how parties enforce the provisions. Case studies will examine alleged breaches. Students should download & skim the pertinent international agreements. Case study: Case study: Case study: United States: Kyoto Protocol. Iran, Pakistan, PDRK: Nuclear Non-proliferation Treaty United States: Torture Convention; Geneva Convention on the Treatment of Prisoners of War. Case Study: United States Medellin case. Assignment: Damrosch - Chapter 3. 2
Download and skim the Vienna Convention on the Law of Treaties. Research paper: Frame the legal issue of the selected topic. 04- February 07 Treaties and Treaty Violations (continued). Case study: Case study: Case study: United States: Kyoto Protocol. Iran, Pakistan, and PDRK: Nuclear Non-proliferation Treaty. United States: Torture Convention; Geneva Convention on the Treatment of Prisoners of War. Case Study: United States Medellin case. Assignment: Damrosch - Chapter 3. Vienna Convention on the Law of Treaties skim. Download and review the above-listed treaties/conventions. Research Paper: Basic outline of approved topic. 05 February 14 Legitimate Use of Force. Understanding when the use of force is considered to be legitimate under International Law. Case study: US-led coalition invasion of Afghanistan (2001). Case study: US-led coalition invasion of Iraq (2003). Case study: The Bush Doctrine. Case study: U.S. military assistance to Colombia. Case study: Israel and Lebanon. Case study: Russian involvement in Georgia (August 2008). Case study: Israel and the Palestinian authority (January 2009). Assignment: Damrosch Chapter 15 (pp. 1129 1276) 3
Handouts from instructor. Assignment (continued): Download and review: (1) The Covenant of the League of Nations (Articles, 8, 12-14, 22). (2) Kellogg-Briand Pact. (3) United Nations Charter (Articles 2.4, 51) (4) UNGA Resolution 377A (V)(1950). (5) UNGA Resolution 3314 (XXIX)(1974). (6) Inter-American Treaty of Reciprocal Assistance. Research Paper: Expanded outline of approved topic. 06 February 21 No class President s Day Holiday 06 February 22 Legitimate Use of Force (continued). 07 February 28 International Crimes. Understanding the nature and significance of international crimes. The nature of national, international, and universal jurisdiction. Adjudication of international crimes in domestic courts, international tribunals and the International Criminal Court. the refusal of the United States to ratify the Treaty of Rome. Assignment: Damrosch: pp. 804-814; Chapter 16. Download and review: (1) ILC Draft Code of Crimes Against the Peace and Security of Mankind. (2) Rome Statute of the International Criminal Court. 08 March 07 International Crimes War Crimes. Understanding the nature of war crimes and war crimes tribunals. Evaluation of the tribunals for 4
Yugoslavia, Rwanda, and Sierra Leone. Discussion of the status of detainees at Guantanamo Bay Cuba. Discussion on the trials of Saddam Hussein and Charles Taylor. Assignment: Damrosch: Chapter 15 (pp. 1276 1305). Damrosch: pp. 457, 661, 805, 808, 1139-57, 1213-14, 1292, 1313-26, 1354-67. Download and review: (1) Geneva Conventions I - IV and Protocols I and II. 09 March 14 No class Spring Break. Enjoy! 09 March 21 Law of Armed Conflict. The nature of international and noninternational armed conflicts. The applicability of the Hague and Geneva Conventions and customary humanitarian law. Assignment: Damrosch: pp. 1276-1305; handouts from Prof. Small. Review Geneva Conventions I - IV and Protocols I and II. Case studies: Armed conflicts in Iraq, Afghanistan, Chechnya, Colombia, Georgia (2008), Israel (Lebanon and Palestinian Authority). 10 March 28 Law of Armed Conflict (continued). The duties of an Occupying Power. Understanding whether the United States and its coalition allies fulfilled their obligations under the Geneva Conventions as an Occupying Power. Understanding the nature and seriousness of the incidents at Abu Gharib Prison. Assignment: Review: Geneva Conventions and Protocols I and II. 11 - April 01 Fulbright Symposium - Morning and Afternoon Sessions. - Special meeting between sessions to evaluate symposium. 5
11 - April 04 No Class. 12 April 11 Weapons of Mass Destruction: Discussion of the Threat/Use of Nuclear, Biological, and/or Chemical Weapons. Understanding the ICJ Advisory Opinion on the Threat/Use of Nuclear Weapons. Assignment: Damrosch: (1) Biological weapons: pp. 1298-1300; handouts. (2) Chemical weapons: pp. 1208, 1240, 1298-1302; handouts. (3) Nuclear weapons: pp. 90, 254-55, 271-72, 417, 422, 562, 625-35, 1158-59, 1186-86, 1494-96; handouts. Download and review: (1) Protocols I & II additional to the Geneva Conventions. (2) Chemical Weapons Convention. (3) Comprehensive Nuclear Test-Ban Treaty. (4) Biological Weapons Convention. (5) Nuclear Nonproliferation Treaty. (6) ICJ Advisory Opinion on the Use/Threatened Use of Nuclear Weapons. Research Papers: Student presentations. 13 April 18 Genocide: Discussion on the definition and nature of genocide and the difficulty in adjudication.. Assignment: Damrosch: pp. 143-150, 166-70, 438, 503, 517, 805-13, 984, 997, 1044-48, 1213-14, 1256-59, 1309, 1341-43, 1531-34; handouts. Download and review: (1) U.N. Convention on the Prevention and Punishment of the Crime of Genocide (78 U.N.T.S. 277). Case studies: Darfur Region of the Sudan, Cambodia, Rwanda, Sbrenica. 6
Research Papers: Student presentations. 14 April 25 Terrorism: International Crime? Understanding state-sponsored terrorism; air terrorism; jurisdictional issues under the International Criminal Court and customary law. Assignment: Selected handouts from Prof. Small. Research Papers Due 7
Date : January 10, 2011 From: Prof. Warren E. Small To : Students enrolled in The Law of International Armed Conflict Subj : Attendance and Grade Adjustment Policies 1. This course requires regular attendance and preparation. Students who miss more than two classes, or whose absences and dates of unprepared attendance together total three or more, will have their final grade reduced by one half grade (e.g. from B- to C or A to A- ). 2. Attendance will be taken by roll call at the beginning of each class session. Additionally, a preparation sign-in sheet will be on the podium at the beginning of each class. Students who are not prepared for class shall sign in prior to the beginning of class and shall not be called upon during that particular class meeting. If a student who has not signed in is called upon and is unprepared, then it shall count as the equivalent of two (2) unprepared sign-ins. 3. Push/pull points will also be given on the basis of class participation. These may raise of lower a student s grade by one-half (0.5) points (e.g., from C to B-, or A to A- ). Warren E. Small 8
International Law Primer I. Differences Between International Law and Domestic Law A. Subjects of Domestic Law and International Law 1. Subjects of Domestic Law a. Individuals b. Corporations c. Legal person 2. Subjects of International Law a. States b. International organizations limited standing. (1) International agreements c. Individuals very limited standing under international law. (1) Individual must rely on the state to bring an action against an offending state. (2) Individuals are the focus of human rights and humanitarian law principles. B. Sources of Domestic Law and International Law. 1. Sources of Domestic Law a. Legislative action b. Administrative decree c. Judicial precedent d. Police power e. Recorded in legislative record or statutory records 2. Sources of International Law a. Custom (1) Customary law is derived from the action of states. (2) No time limits. (3) Opinio juris: the consistent action of states over time 9
because those states believe they had an obligation to act in that manner. Very difficult to prove intent. (4) Consensus by states that a particular principle or state action is binding upon all states. (5) Examples include territorial boundaries, diplomatic immunity, humanitarian law principles. b. Treaties and International Agreements (1) Primary source of international obligations. (2) Treaty law is articulated in the Vienna Convention on the Law of Treaties. (3) Pacta sunt servanda: Customary international law principle holding that states are obligated to abide by the terms of any agreement they enter into. c. Judicial opinions (1) Binding only on the parties to a particular proceeding. (2) May be persuasive in interpreting future issues. (3) No hierarchal court structure (4) Each issue before an international judicial body is treated as a matter of first impression. (5) ICJ Advisory opinion on the legality under international humanitarian law of the use or threatened use of nuclear weapons. d. Opinions of Learned scholars (1) Establish a body of concurring opinions as to the legality of certain principles or state actions. (2) Law books. (3) Law review articles. (4) Symposiums, lectures, white papers, etc. C. Enforcement of Domestic Law and International Law 10
1. Enforcement of Domestic Law a. Executive authority b. Police power of the state. 2. Enforcement of International Law a. Consensus states must agree that a particular state has committed an internationally wrongful act and agree what remedies are appropriate. (1) Sanctions (2) Embargo (3) Suspend or terminate diplomatic relations b. Organizational enforcement international agreements often contain enforcement provisions that permit the organization to adjudicate violations of that organization s governing instrument(s). II. Significant Principles and Concepts A. Sovereignty (1) WTO dispute resolution mechanism. (2) OAS Charter 1. Territorial sovereignty 2. Political sovereignty 3. Statehood a. Recognition (1) De facto (2) De jure 4. Attributes of Statehood B. The Law of Treaties 1. Consent 11
2. Reservations 3. Entry into Force 4. Interpretation 5. Breaches 6. Pacta sunt servanda: Customary international law principle holding that states are obligated to abide by the terms of any agreement they enter into. C. Jurisdiction 1. Territorial principle. 2. National principal - jurisdiction as to a state s citizens 3. Passive personality principal - extraterritorial jurisdiction 4. Protective principle - extraterritorial jurisdiction 5. Universality principle - extraterritorial jurisdiction 6. Sovereign immunity 7. Diplomatic immunity D. State responsibility 1. International wrongful act 2. Peremptory norms jus cogens E. Use of Force 1. United nations Charter 2. Categories (1) Retorsions (2) Reprisals (3) Self-defense individual, collective, pre-emptive. (4) Protection of nationals abroad. (5) Self-determination. 12