JJUA55093U Public International Law I: Fundamental Questions - NOTE: THE COURSE IS CANCELLED IN THE SPRING SEMESTER 2017
The undeniably critical role played by public international
law has been described as the “authoritative language, used
by States, international organizations, individuals and other
participants in the international legal order to interact with each
other.” This course will teach you the grammar, syntax, and logic
of that language and thereby allow you to join this increasingly
important conversation. You should take this course if you want to
understand why international law matters and states comply with it,
how this normative body is structured, what practical role legal
regulation plays in international life, and where changing
international life is likely going to lead. Most of the
institutions that define a well-developed national legal system –
that is a legislature making law, an executive enforcing laws, and
a judicature compulsorily adjudicating legal claims– are absent at
the international level. Public international law must therefore be
approached with different conceptional tools and an appropriate
analytical frame of mind. It is an essentially ‘primitive’ legal
system, necessarily lacking the institutional sophistication most
of you have painstakingly studied in your efforts to qualify as
nationally-approved lawyers. But it is nevertheless a highly
complex, rapidly growing, and increasingly important part of legal
science and political discourse. In an increasingly globally
operating legal profession, robust competencies in public
international law have become indispensable and provide a good
foundation of employment in international organisation, corporate
law, as well as large law firms.
Part I: Why International Law?
Week 1: The International System
Session 1: Nature and Development of IL
Shaw, pp. 1-30 Dinstein, 1986 (optional) Goldsmith and Posner, 2002 (optional)
Session 2: History and Universality of IL
Week 2: Origins and Compliance
Session 3: International Law Today
Shaw, pp. 31-48 Morgenthau, 1948 Koskenniemi, 2004 Anghie, 2006 Anghie, 1996 (optional) Onuma, 2003 (optional)
Session 4: Compliance and Coercion
Doehring, 2004, pp. 19-23 Koh, 1997 Chimni, 2004 (optional)
Part II: How is International Law
Week 3: Subjects of IL
Session 5: Personality and Statehood
Shaw, pp. 142-193
Session 6: The Westphalian Order
Gross, 1948 Beaulac, 2000
Week 4: Defining the Units
Session 7: Territory
Shaw, pp. 352-400
Session 8: Recognition
Shaw, pp. 321-351 Case Study Palestine: Boyle, 1990 Crawford, 1990 Kirgis, 1990 Cole, 2014 Kershner, 2014 Silverberg, 1998 (optional)
Week 5: Origin of Norms
Session 9: Sources of International Law
Shaw, pp. 49-91
Session 10: Treaties
Shaw, pp. 654-692
Week 6: Delineating Sovereign Control I
Session 11: State Succession
Shaw, pp. 693-731
Session 12: International and Municipal Law
Shaw, pp. 92-140, skim only: pp. 99-119 Bederman, 1998
Week 7: Delineating Sovereign Control II
Session 13: Jurisdiction
Shaw, pp. 469-505
Session 14: Immunities from Jurisdiction
Shaw, pp. 506-565
Part III: What is regulated? International
Week 8: Law of Coexistence
Session 15: State Responsibilities
Shaw, pp. 566-612
Session 16: Peaceful Dispute Settlement
Shaw, pp. 732-779
Week 9: Cooperation and Common Interests
Session 17: The United Nations
Shaw, pp. 875-930
Session 18: International Organisations
Shaw, pp. 931-965
Week 10: Peace and Security
Session 19: Collective Security and the Use of Force
Shaw, pp. 811-846
Session 20: International Humanitarian Law (The Laws of War)
Shaw, pp. 847-874
Part IV: Where is International Law heading?
Week 11: Human Dignity
Session 21: International Human Rights Mechanisms
Shaw, pp. 194-221, skim pp. 222-247 Posner, 2014 Ghai, 1999 (optional)
Session 22: Regional Human Rights Mechanisms
Shaw, pp. 248-284 Teitgen, 1993 Moravcik, 2000 (optional)
Week 12: Uniformity and Divergence
Session 23: Functional Necessity or Cultural Imposition?
Gathii, 1998 Afsah, 2008 Anghie, 1996 (read again, previously assigned) Morgenthau, 1940 (read again, previously assigned) Mitrany, 1965 (optional)
Session 24: Discussion and Review
At the completion of the course, students will obtain the following Knowledge and have:
- Learnt the difference between different theoretical approaches to inter state relations, especially what distinguishes the discipline of international law from other international relations theories
- Learnt the basic structural differences between international law and municipal legal systems, including the inherent differences in law-creation, law-enforcement, and adjudication
- Learnt the basic historical evolution of modern international law from its Westphalian origin to the present day
- Learnt to differentiate between the two dominant normative discourses in this this evolution, that is natural law and positivism
- Learnt the basic methodology of the discipline, that is its sources (Custom, Treaties, Principles, Decisions), its procedures (State Formation, Consent, Coercion, Adjudication, Arbitration, International Organisations), and its effects and aims (Sovereignty, State Responsibility, Peace, Justice)
Students will acquire the following Skills and be able to:
- Read and interpret international treaties and judicial decisions
- Apply the tenets of international law to concrete cases and propose solutions to complex legal problems
- Distinguish legal from political or moral argumentation
- Resolve competing legal claims with respect to state jurisdiction, title to territory, legality of force, etc.
- Analyse the relative effectiveness of different legal instruments and propose alternatives
The course will therefore equip students with the following Competencies in order to:
- Identify salient legal issues in current events
- Identify the origin and relative strength of competing rights and obligations of states
- Analyse and evaluate competing models of the origin of international law
- Explain the basic institutional structure of international life, that is the interplay of different legal instruments, international organisations, and institutions
- Analyse and evaluate the role of power in the creation and maintenance of the international legal order.
The textbook for this class is Malcolm Shaw, International
Law, 7th ed., Cambridge: Cambridge University Press, 2014.
Students are very strongly encouraged to purchase a hard copy prior
to the first class.
In addition, the following articles are assigned to supplement Shaw; students are expected to have completed them prior to that week’s session. The exam can, however, be passed with full marks relying only on the prescribed readings in Shaw which comprise ca. 700 pages.
Ebrahim Afsah, “Contested Universalities of International Law. Islam’s Struggle with Modernity,” Journal of the History of International Law, Vol. 10 (2008) pp. 259-307.
Jose E. Alvarez, “Do Liberal States behave better? A Critique of Slaughter’s Liberal Theory,” European Journal of International Law, Vol. 12 (2001) pp. 183-246.
Antony Anghie, “Francisco de Vitoria and the Colonial Origins of International Law,” Social Legal Studies, Vol. 5 (1996) pp. 321-36.
“Europe and International Law’s Colonial Present,” Baltic Yearbook of International Law, Vol. 6 (2006) pp. 79-84.
Stephane Beaulac, “The Westphalian Legal Orthodoxy: Myth or Reality?,” Journal of the History of International Law, Vol. 2 (2000) pp. 148-77.
David Bederman, “The Enforcement of Human Rights and Humanitarian Law by Civil Suits in Municipal Courts. The Civil Dimension of Universal Jurisdiction,” in: Contemporary International Law Issues: New Forms, New Applications, ed. by Wybo P. Heere (The Hague: American Society of International Law, 1998) pp. 156-72.
Francis A. Boyle, “Creation of the State of Palestine, The Forum: The Algiers Declaration on Palestine,” European Journal of International Law, Vol. 1 (1990) pp. 301-6.
Bhupinder S. Chimni,“International Institutions Today: An Imperial Global State in the Making,” European Journal of International Law, Vol. 15, No. 1 (2004) pp. 1-37.
Juan Cole, “Far Right Extremist Avigdor Lieberman says Swedish Recognition of Palestine will Strengthen Extremists,” Informed Comment: Thoughts on the Middle East, History and Religion, Ann Arbor, Michigan, 31 October 2014, available at: http://www.juancole.com/2014/10/recognition-strengthen-extremists.html, accessed on: 2 February 2015.
James Crawford, “Creation of the State of Palestine: Too Much Too Soon, The Forum: The Algiers Declaration on Palestine,” European Journal of International Law, Vol. 1 (1990) pp. 307-13.
Yoram Dinstein, “International Law as a Primitive Legal System,” New York University Journal of International Law and Politics, Vol. 19, No. 1 (1986) pp. 1-32.
Karl Doehring, Völkerrecht: Ein Lehrbuch, 2nd ed.(Heidelberg: C. F. Müller Verlag, 2004).
James Thuo Gathii, “International Law and Eurocentricity,” European Journal of International Law, Vol. 9 (1998) pp. 184-211.
Yash Ghai, “Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims,” Cardozo Law Review, Vol. 21, No. 4 (1999) pp. 1095-140.
Jack L. Goldsmith and Eric A. Posner, “Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective,” Journal of Legal Studies, Vol. 31, No. 1 (2002) pp. 115-39.
Leo Gross, “The Peace of Westphalia 1648-1948,” American Journal of International Law, Vol. 42 (1948) pp. 20-41.
Isabel Kershner, “Sweden Gives Recognition to Palestinians,” New York Times, (30 October 2014).
Frederic L. Kirgis, Jr., “Admission of “Palestine” as a Member of a Specialized Agency and Withholding the Payment of Assessments in Response,” American Journal of International Law, Vol. 84, No. 1 (1990) pp. 218-30.
Harold Hongju Koh, “Why Do Nations Obey International Law?,” Yale Law Journal, Vol. 106, No. 8 (1997) pp. 2599-659.
Martti Koskenniemi, “Why History of International Law Today?,” Rechtsgeschichte, Vol. 4 (2004) pp. 61-66.
David Mitrany, “The Prospect of Integration: Federal or Functional?,” Journal of Common Market Studies, Vol. 1, No. 4 (1965/6) pp. 119-49.
Andrew Moravcsik, “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe,” International Organization, Vol. 54, No. 2 (2000) pp. 217-52.
Hans Joachim Morgenthau, “Positivism, Functionalism, and International Law,” American Journal of International Law, Vol. 34, No. 2 (1940) pp. 260-84.
Yasuaki Onuma, “International Law in and with International Politics: The Functions of International Law in International Society,” European Journal of International Law, Vol. 14, No. 1 (2003) pp. 105-39.
“When was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspective,” Journal of the History of International Law, Vol. 2, No. 1 (July 2000) pp. 1-66.
Eric A. Posner, “The Case against Human Rights,” The Guardian, (London, 4 December 2014).
John Gerard Ruggie, “Territoriality and Beyond: Problematizing Modernity in International Relations,” International Organization, Vol. 47, No. 1 (1993) pp. 139-74.
Malcolm N. Shaw, International Law, 7th ed. (Cambridge: Cambridge University Press, 2014). Sanford R. Silverberg, “Diplomatic Recognition of States in Statu Nascendi: The Case of Palestine,” Tulsa Journal of Comparative & International Law, Vol. 1, No. 1 (1998) pp. 21-48.
P.-H. Teitgen, “Introduction to the European Convention on Human Rights,” in: The European System for the Protection of Human Rights, ed. by R. St. J. Macdonald, F. Matscher, and H. Petzold (Dordrecht: Martinus Nijhoff, 1993) pp. 3-14.
- 15 ECTS
- Type of assessment
- Written examination, 1 dayAssigned individual written assignment, 1 day
- Marking scale
- 7-point grading scale
- Censorship form
- No external censorship
- Exam period
Autumn: December 7-8, 2016
Spring: June 14-15, 2017
Spring: August 8-9, 2017
Criteria for exam assesment
The course is evaluated by a written, open-book, one-day take
home examination. The exam poses three different types of questions
requiring different writing and presentation skills.
Students will have to write:
- a memorandum giving concrete legal advice based on a case study, advising a fictitious government department on what to do in an international legal crisis
- define concisely 15 technical terms
- write a coherent essay arguing for or against a normative position of international law.
The criterion for evaluation is the student’s
demonstration of the following knowledge, skills and competencies,
that is being able to:
- Identify the different legal problems contained in a given international problem (case study)
- Identify the applicable international principles responding to these problems
- Evaluate the origin and relative strength of these principles
- Propose concrete solutions and a course of action for the given recipient of international legal advice (government department)
- Label and contextualise key concepts, explain their role, differentiation and relationship to related concepts
- Evaluate basic normative disputes within the discipline, weigh the respective arguments pro and contra, make a reasoned choice, and propose an appropriate synthesis
- Distinguish legal from political or moral argumentation
- Communicate these findings professionally, that is syntactically, grammatically, and linguistically correct
- Produce logically stringent, coherently structured, and persuasive legal briefs.