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INTERNATIONAL LAW
Professor Dan Danielsen
Northeastern University School of Law
Assignments
Assignments are from Damrosch, Henkin, Pugh, Schachter and Smit, International Law Cases and Materials Fourth Edition (2001) and distributed materials. Those marked with an asterisk (*) are required. Assignment abbreviations refer to the following sources:
DHPSS Damrosch, Henkin, Pugh, Schachter and Smit casebook
DM Distributed Materials
The assignments and suggested readings differ in length. We will normally cover about one assignment per day. I will keep you informed about the assignment schedule as we go along.
The casebook presents itself as a "classical" treatment, suitable for a course in the "grand classical tradition." We will take this as our starting point. The distributed materials juxtapose historical, theoretical and avant-gardist points of views.
Call the bookstore (617/373-2286) or Gnomon Copy (617/536-4600) to determine if the course materials are available in advance.
Information about the Exam
for International Law
Professor Dan Danielsen
This three-hour course will require one 2,500 word final exam essay, three two page papers and regular class participation.
Fifty percent of your evaluation will be a take home exam-essay (maximum 2,500 words or roughly 10 double-spaced pages), distributed on the last day of class and due on the last day of the exam period.
Twenty-five percent of your evaluation will be based on three two-page papers. Students should select three of the assignments and write a two-page essay reflecting on the readings. The course syllabus is divided into four parts designated by Roman numerals I through IV. While you have complete freedom as to which assignments you choose to write about, you must turn in papers from three different parts of the course.
NOTE: Hard copies of the two-page papers must be turned in to Professor Danielsen or his assistant, Jan McNew, before the readings you consider are discussed in class.
Finally, twenty-five percent of your evaluation will be based on your group’s participation in class discussions. This participation requirement will be explained in more detail on the first day of class.
Course Outline
I. Origins
1 A. International Law as a Discipline
B. Doctrinal Sources
2 1. Doctrinal Machinery to Identify Sources
3 2. Custom
4 3. Treaties and Special Problems
II. Sovereignty Into Process: From 19th Century Theory to a Modern Procedural Regime
5 A. History and Theory of Sovereignty: Towards Modernism
6 B. A Modern Regime of Doctrines and Procedures
1. Statehood and Recognition
2. Jurisdiction
7 a. Territory/Interest Based Exercise
8 b. Nationality, Citizenship and Statelessness
9 c. Limits and Conflicts
10 3. State Responsibility and Remedies
a. General Principals
b. Counter-Measures and Self-Help
III. The Law of Peace
(To be provided)
(To be provided)
Assignment 1
I. Origins
A. International Law As a Discipline
Readings:
· *DHPSS: 16-25 (Is international law “Law”?)
· *DM “The Wall” Israel/Palestine
Assignment 2
I. Origins
B. Doctrinal Sources: Custom and Treaty
1. Doctrinal Machinery to Identify Sources
Readings:
· *DHPSS: 56-68 (A.38, Schachter, general, Paquete Habana, McDougal, notes)
Questions for Discussion:
Ø Why do international law materials devote such a great deal of energy to the "sources" of normative authority?
Ø What does Schachter mean by “intellectual instrument…for providing objective standards of legal validation” on page 57?
Ø Try answering the questions on pages 59 and following. Can you imagine yourself arguing for one or another position as an attorney?
Ø The doctrines about sources are reminiscent of private law doctrines about contract. What about the fact that these are states? What's sovereignty got to do with it? International sovereignty?
Assignment 3
I. Origins
B. Doctrinal Sources: Custom and Treaty
2. Custom; Intro to Treaty
Readings
· *DHPSS: 68-87 (S.S. Lotus, Nuclear Weapons)
· *DHPSS: 108-117 n.4 (general, codification, relation between treaty and custom)
Questions for Discussion:
Ø The casebook begins with custom, although treaties are now thought the pre-eminent source of international law --- there are more of them, they seem less normatively problematic from a consensual point of view. Why do you think they did so?
Ø If sources of law differ in their pedigree, do they differ also in their normative force? Is it on/off? More relative than that?
Ø We can now begin to develop a sense for changes in international law in this century. What can we say about the history of international law in this century from the three points of Paquete Habana (1900), Lotus (1927), Weil (1983), and Nuclear Weapons (1996)?
Ø Which seems more advantageous to weaker states, treaty or custom? Why?
Ø Perhaps custom structures the background norms, allowing more detailed substantive matters to be handled by treaty --- but then how to explain the Paquete Habana and other cases deriving quite specific rules from custom?
Assignment 4
I. Origins
B. Doctrinal Sources: Custom and Treaty
3. Treaties & Special Problems
Readings:
· *DHPSS: 451-457 (Vienna Convention, definition of treaty);
457-462 (unilateral declarations, Nuclear Tests Case, Burkina Faso/Mali);
1-0 (non-binding agreements);
532-536 (jus cogens)
· *DHPSS: 553-568 (fundamental change of circumstances, Fisheries Case, war, Techt v. Hughes)
· *DM: International Load Line Convention Case
Questions for Discussion:
Ø Is a "non-binding agreement" the same as a "relatively normative" custom?
Ø Arguments about both consent and justice or equity are present in talk about doctrines of treaty formation and stability such as pacta sunt servanda as well as in doctrines about treaty termination such as rebus sic stantibus. Is there a conflict here? How is that conflict mediated in the doctrinal discussion?
Ø What do you make of jus cogens? A doctrinal trivia? A central issue of treaty law? How do you explain the lack of cases? Why is this a doctrine about treaties rather than about the strength of the substantive norms involved?
Ø How do you account for the political energy expended to get norms recognized as jus cogens? Is there a relationship between substantive hyperbole and remedies?
Ø Does war change the calculus here?
Assignment 5
II. Sovereignty Into Process: From Nineteenth Century Theory to a Modern Procedural Regime
A. History and Theory of Sovereignty: Towards Modernism
Readings:
· *DM: The Antelope 23 U.S. (10 Wheaton) 66 (1825)
· *DM: Corbett, What is the League of Nations?, British Yearbook Int. L., 119-148 (1924) (excerpts)
· *DHPSS: 1-10 (Modern views of sovereignty)
· *DM: David Kennedy, Some Reflections on 'The Role of Sovereignty in the New International Order, State Sovereignty: The Challenge of a Changing World: "New Approaches and Thinking on International Law, 237 (proceedings of the 21st Annual Conference of the Canadian Council on International Law at Ottawa, October 1992)
Questions for Discussion:
Ø What is sovereignty anyway? A doctrine? A power? A slogan? These materials elaborate images of sovereignty in relation to ideas about authority, territory, war and right? How have those images changed over this period?
Ø Imagine the “transfer” of “sovereignty” to Iraq? What would that mean for the Iraqi people? the Shiites? the Sunis? the Arab world? the international community? How do the materials we read for today help us to sort these questions out?
Assignment 6
II. Sovereignty Into Process: From Nineteenth Century Theory to a Modern Procedural Regime
B. Modern Regime of Doctrines and Procedures
1. Statehood and Recognition
Readings:
· *DHPSS: 249-268 (definition of statehood, recognition)
· *DHPSS: 292-312 (Recognition criteria and effects, Salimoff, Upright v. Mercury)
Questions for Discussion:
Ø How do the two "views" on statehood elaborated on page 252-253 of DHPSS relate to the "conditions of statehood" elaborated on page 253 and following?
Ø Is “statehood” an on/off status? What does it mean that Israel is a state? What would it mean for the Palestinian authority to become a state? be treated like a state? be recognized as a state? Would or must this happen all at once for all purposes?
Assignment 7
II. Sovereignty Into Process: From Nineteenth Century Theory to a Modern Procedural Regime
B. A Modern Regime of Doctrines and Procedures
2. Jurisdiction
a. Territory/Interest Based Exercise
Readings:
· *DHPSS: 1088-1111, (jurisdiction defined, US v. Aluminum, Hartford Fire, Nippon Paper, Helms-Burton Iran/Libya sanctions)
· *DHPSS: 1134-1143 (protective principle, universality principle, Pinochet)
· DM: Robert Malley, Jean Manas, Crystal Nix, Note, Constructing the State Extra-territorially: Jurisdictional Discourse, the National Interest, and Transnational Norms 103 Harv. L. R., 1273 (1990) (excerpts)
Questions for Discussion:
Ø What is jurisdiction? Is it a relative or absolute matter? Is municipal jurisdiction consensual at international law?
Ø What do you think determines the extent of extraterritorial jurisdiction as a practical matter? Why do we recognize the exterritorial reach of antitrust law but not antidiscrimination law, or labor or environmental standards?
Ø Malley/Manas/Nix argue that a formal nineteenth century idea about jurisdiction gave way to a modern "reasonable" balance of state interests in a way that also limits the political imagination. Is their proposal that "reasonableness" give way to a jurisprudence of contending groups likely to work?
Ø Sometimes legal standards have exterritorial effects even if they aren’t usually thought of as extraterritorial. For example, US air safety standards have become global standards because compliance is a prerequisite to access to US markets. Is this extraterritorialism any different from the kinds described above? How might it be used to effect other desirable social transformation such as increased wage rates or worker safety standards abroad?
Assignment 8
II. Sovereignty Into Process: From Nineteenth Century Theory to a Modern Procedural Regime
B. A Modern Regime of Doctrines and Procedures
2. Jurisdiction
b. Nationality, Citizenship, and Statelessness
Readings:
· *DHPSS: Review 1091 (from previous assignment) (Restatement ' 402(2), jurisdiction over nationals); 1111-1121 (jurisdiction based on "active" and "passive" nationality)
· *DHPSS: 425-434, 441-450 (significance of nationality; statelessness; Nottebohm case; Barcelona Traction case).
Questions for Discussion:
Ø What role does nationality play in the construction of the "international plane"--the procedural arena for the assertion and resolution of claims and counterclaims between states?
Ø The Nottebohm and Barcelona Traction cases enunciate rules of international law – how do they use the source materials? How do they metabolize Lotus? Differently from The Nuclear Weapons Case? What can we say about the substantive law of citizen ship and corporations enunciated by the court? Are they good rules?
Assignment 9
II. Sovereignty Into Process: From Nineteenth Century Theory to a Modern Procedural Regime
B. A Modern Regime of Doctrines and Procedures
2. Jurisdiction
c. Limits and Conflicts
Readings:
· *DHPSS: 1197-1200 (jurisdictional immunities)
· *DM: Schooner Exchange v. McFaddon, 11 U.S. 116 (1812)
· *DM: American Banana v. United Fruit (1909)
· *DHPSS: 1155-1165 (conflicts of jurisdiction, Nova Scotia 1983)
Questions for Discussion:
Ø How is the conflict among various sovereign authorities proceduralized by these jurisdictional resolutions? What visions of sovereignty, force and order present themselves in these cases?
Ø Is a good idea to limit each sovereign’s legislative reach to its territory? How do these rules affect strong states? weak states? multinational corporations? the poor?
Assignment 10
II. Sovereignty Into Process: From Nineteenth Century Theory to a Modern Procedural Regime
B. A Modern Regime of Doctrines and Procedures
0. State Responsibility and Remedies
a. General Principals
Readings:
· *DHPSS: 684-698 and 704-708 (general principles, attribution doctrine, injury, Barcelona Traction, international crimes and delicts, excuses, Rainbow Warrior)
Questions for Discussion
Ø Why is breach doctrine separable from doctrines of rights and doctrines of responsibility?
Ø What do you make of the apparent autonomy of this elaborate scheme from any particular doctrines of a substantive nature?
Ø How might we use state responsibility doctrine as progressive lawyers?
II. Sovereignty Into Process: From Nineteenth Century Theory to a Modern Procedural Regime
B. A Modern Regime of Doctrines and Procedures
1. State Responsibility and Remedies
. Counter-Measures and Self-Help
Readings:
*DHPSS: 713-728 (counter-measures and self help, France v. U.S. - Air Services, collective sanctions, reparation)
Questions for Discussion
Ø These doctrines lie quite close to rules about war. Would these doctrines look different if understood as doctrines about intervention? About "just war?"