Seminar on International Courts Fall 1997 Washington College of Law American University

Introduction to the practice of international courts and arbitral tribunals and their role in the development of international law. Offered in a seminar format using lectures, case-studies, and class exercises as teaching methods, the course will outline the evolution and structure of international tribunals, examine the development of international legal principles by international tribunals with reference to "sources" methodology, and discuss issues concerning the effectiveness and future role of international courts in the development of international law.

1. Introduce students to the historical evolution, structure, and function of international tribunals within the international legal system.

2. Reinforce students' conceptual understanding of the sources of international law and their inter-relationships.

3. Examine selected international legal issues and modes of legal argumentation using class exercises simulating international judicial dispute resolution.

4. Outline issues concerning the effectiveness of international tribunals as dispute resolution mechanisms and their future.

John's office is in Room 115 (inside the Law Library). His office hours are Mondays, 2:00 p.m. to 10:00 p.m., and Tuesdays through Fridays, 8:00 a.m. to 4:00 p.m. John will also be available for a short time after class, and by special appointment. John's office telephone is 202-274-4329, and his home telephone is 301-929-2535. His e-mail address is: heywood@american.edu

Chris works downtown for the Institute of Electrical and Electronics Engineers (1828 L Street, NW, Suite 1202). He will be available after class, and you can telephone to make arrangements to meet with him in his office. Chris's office telephone is 202-785-0017, and his home telephone is 301-439-7729. His e-mail address is: c.brantley@ieee.org

All students at WCL have e-mail accounts on EagleNET. Your address is the first initial of your first name, the first initial of your last name, the last four digits of your student i.d. number, the letter "A", followed by "@american.edu" (without any spaces and, of course, without the " marks). For example, if your name is Jane Doe and your i.d. number is 123-45-6789: Your e-mail address is "jd6789a@american.edu" (not the quotes, of course). To get onto the system, you need to use your account name and password. To find out your account password, please stop by the Department of Computer Services Student Computing Office (Room 206 in the Law Library), Student Computing Lab (Room 526), or their Main Office (Room 393).

We have established a mailing list for this course. A mailing list is a way for all of us to communicate easily with each other by e-mail. When you post a message to the list, everyone on the list gets a copy in their e-mailbox. All enrolled members of this class are members of the list, as are both professors. To send a message to the list, just address it to:

C3973839@american.edu

Messages from the list will have "C3973839" in the FROM field. We expect students to use the list for out-of-class discussion, preparation of the in-class exercises, and for questions to the professors. We will actively participate in the discussion online, both posing and answering questions, as well as commenting on the issues at hand. Participation in the online discussion will count toward your class participation grade. You are required to check your e-mail regularly for this class, as we will post important announcements there first.

Like every commercial on television these days, we have a website:

http://real-ale.wcl.american.edu/courts/

We will post additional materials, reference sources, and other useful items of interest to the class on our website.

70% Scholarly Paper:

(30+ pages, exclusive of notes, double-spaced with one inch margins) based on a topic relating to the role of an international tribunal(s) in the development of international law. A written topic proposal must be presented for approval by 30 September 1997. The paper will satisfy the W.C.L. Upper Level Writing Requirement.

20% Class Presentation:

5 minute topic presentation to the class early in the semester and a 20 minute major class presentation on paper topic at the end of the semester. The grade will be based on the following factors: preparation, organization, grasp of topic, effective use of time, and responsiveness to questions.

10% Class Participation:

Evaluation of attendance, preparation for and participation in class room discussion, participation in the online discussion, and participation in class exercises.

All students are expected to attend and participate in classes. More than three unexcused absences will result in entry of a failing grade for the course.

Late Papers

Papers are due in John Heywood's office no later than 5:00 p.m. on Friday, 5 December 1997. This is during Reading Period. If you are a student who is graduating this December, you MUST get your paper in to us by this date in order to graduate. We need time to read and evaluate your work before assigning a grade. If you miss this deadline, we may not be able to turn your grade in to the Registrar in time for you to graduate.

Papers turned in after this date and time without a previously approved extension will be penalized one-half letter grade for every weekday (excluding holidays) after the due date. The day ends at 5:00 p.m.

Example:

A paper is turned in at 5:45 p.m. on Tuesday, 9 December 1997, without a pre-approved extension. If the paper had been turned in on time, it would have received a B+. The paper was effectively handed in on Wednesday, 10 December 1997, and is thus 3 days late. It receives the grade of C.

Short extensions for worthy causes, such as computer failure, death in the family, my dog ate my disk/paper, etc., will be granted with no penalty if you apply for it before the time the paper is due. (i.e., If you are printing out your paper 10 minutes before 5:00 p.m. on the fifth of December and your computer dies, call us immediately.) These extensions will be very short in duration; no more than a day or two.

Plagiarism and Related Problems

Everyone knows that plagiarism is wrong, but not everyone is clear on what exactly is plagiarism. It is the gravest of the academic sins, and it is more than just copying without attribution. We have listed the various forms of plagiarism below in descending order of gravity, (1) being classic absolute plagiarism, and (9) being a much lesser version. All of them should be avoided. Non-de minimus plagiarism will be punished. It will result in zero points for the paper, and thus an F for the course. The case will also be turned over to the Office of Student Affairs for prosecution under the W.C.L. Honor Code.

Plagiarism is:

1. Word-for-word lifting of seven consecutive words or more, without quotation marks or block quotation, and without attribution to any source.

2. Word-for-word lifting of seven consecutive words or more, without quotation marks or block quotation, with an attribution to a source that was not the original source from which the passage was actually lifted nor the source cited (if any) by that original source.

3. Word-for-word lifting of seven consecutive words or more, without quotation marks or block quotation, with attribution to a source that was not the original source from which the passage was actually lifted, but was a source cited by that original source.

4. Word-for-word lifting of seven consecutive words or more, with attribution to the original source from which the passage was actually lifted, but without indication that these are the words of another.

5. Word-for-word lifting of seven consecutive words or more, without quotation marks or block quotation, with attribution to the original source from which the passage was actually lifted, and with the indication that these are the words of another.

6. Attributing a quoted passage to a source that does not contain that quoted passage.

7. Attributing material to a source that does not support the passage for which it is cited.

8. Misquoting a source.

9. Lifting a quoted passage and its attribution from a source without acknowledgment or other indication. An example of this would be if you were reading an article by Smith that quoted another article by Jones, and you put the quotation in your paper with an attribution to Jones, but no mention that you got it from Smith who was quoting Jones.

Class 1: Introduction to Course

26 August 1997

Discussion Topics:

1. Administrative Matters
2. Is International Law Really Law?
3. Evolution and Theoretical Underpinnings of International Tribunals
4. Introduction to Course Themes

Seminar work:

• Using the World Wide Web for Course Research
• Using Folio Views^® and our Electronic Course Materials

Reading Assignment:

• None

Class 2: Introduction to the International Court of Justice

2 September 1997

Discussion Topics:

1. Basic Structure of the ICJ: Organs, Function, Composition and Selection
2. Procedure in the ICJ: Bringing a Case
3. Discussion of the Corfu Channel Case
4. Problems of Non-Appearance, Non-Participation, and Non-Performance

In-Class Exercise:

• Rôle-playing the Albanian-United Kingdom Dispute of 1946-49.

Reading Assignments:

1. The United Nations Charter (selected articles).
2. The Statute of the International Court of Justice.
3. The Corfu Channel Case: A Chronology.
4. The Corfu Channel Case (U.K. v. Alb.)(Merits)(1949).

Class 3: Jurisdiction and Justiciability in International Tribunals

9 September 1997

Discussion Topics:

1. The Compulsory Jurisdiction of the ICJ
2. The Advisory Jurisdiction of the ICJ
3. The Equitable Jurisdiction of the ICJ
4. Justiciability and the Suitability of So-Called Political Cases for Judicial Resolution

Seminar Work:

• Selecting Research Topics

Reading Assignments:

1. United Nation's Charter, Arts. 2(4), 51.
2. Synopses of ICJ Advisory Opinions on the Legality of the Threat or Use of Nuclear Weapons (1996).
3. The Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.)(Jurisdiction and Admission)(1984)(excerpts on admissibility).
4. Synopsis of ICJ Judgment on the Preliminary Objection in the Oil PlatformsCase (1996).
5. Ford, Judicial Discretion in International Jurisprudence: Article 38(1)(c) and "General Principles of Law", 5 Duke J. Comp. & Int'l L. 35 (Fall 1994).

Class 4: Role of the ICJ in the United Nations System

16 September 1997

Discussion Topics:

1. Enforcement of ICJ Decisions
2. Relation of ICJ and Security Council in Resolution of Disputes Involving International Peace and Security
3. Discussion of Bosnia-Herzegovina Case
4. Discussion of Libyan Case, (Libya v. U.S./U.K.)(1993)

Seminar Work:

• Library Research Skills for International Law

Reading Assignments:

1. The Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S./Libya v. U.K.)(Provisional Measures)(1992).
2. News Reports for Discussion With the Libyan Case.
3. Jennings, The United Nations At Fifty: The International Court of Justice after Fifty Years, 89 Am. J. Int'l L. 493-505 (1995).
4. Kirgis, The United Nations At Fifty: The Security Council's Fifty Years, 89 Am. J. Int'l L. 506-39 (1995).
5. Materials for the in-class exercise in Class 5.

Class 5: The Role of International Tribunals in Developing International Law

23 September 1997

Discussion Topics:

1. The "Progressive" Development of International Law
2. Evolution of Modern "Instant" Customary Law
3. The International Legislators? (International Law Commission, Sixth Committee of the General Assembly, Foreign Legal Advisors, etc.)
4. How Well Is the ICJ Working?

In-Class Exercise:

• Case Regarding Self-Determination for the People of Taiwan (US v. China) (hypothetical).

Seminar Work:

• Status of Topic Research

Reading Assignments:

1. The North Sea Continental Shelf Case (W. Ger. v. Den.)(1969).
2. T. Franck, Judging the World Court 35-51 (1986).
3. Jennings, The United Nations At Fifty: The International Court of Justice after Fifty Years, 89 Am. J. Int'l L. 493, 504-5 (1995).
4. Helms, Saving the UN, 75 For. Aff. 2 (September/October 1996).

Class 6: Regional Customary Law in an International System

30 September 1997

Discussion Topics:

1. Concept of Regional/Local Norms
2. Regional Norms and the Respective Roles of International and Regional Tribunals
3. Discussion of the Asylum Case
4. Discussion of the Right of Passage Case

Seminar Work:

• Presentation of Topic Proposals (Note: Written Topic Proposals Due)

Reading Assignments:

1. The Asylum Case (Columbia v. Peru) (1950).
2. The Case Concerning Right of Passage Over Indian Territory (Port. v. India) (1960).

Class 7 & 8: Regional Courts in the International System

7 October 1997 & 14 October 1997

Discussion Topics:

1. Introduction to Regional Dispute Resolution
2. Federalization of International Courts
3. European Court of Justice
4. European Commission on Human Rights
5. European Court of Human Rights
6. Inter-American Commission on Human Rights
7. Inter-American Court of Human Rights
8. Prospects for New Regional Courts

Seminar Work:

• Status of Research and Writing

Reading Assignments:

1. Case 26/62, NV Algemene Transport en Expeditie Onderneming Van Gend en Loos v. Nederlands Administratie der Belastingen, 1973 E.C.R. 1.
2. The Söering Case.
3. Buergenthal, Introductory Note to the Velásquez Rodríguez Case.
4. Velásquez Rodríguez Case, Inter-American Court of Human Rights, Judgment of July 29, 1988, (Ser. C, No. 4).

Class 9 & 10: International Crime and International Courts

21 October 1997 & 28 October 1997

Discussion Topics:

1. The Nüremberg (International Military Tribunal) and Tokyo (International Military Tribunal for the Far East) War Crimes Trials
2. The Enforcement of International Humanitarian Law by International Tribunals
3. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991
4. The International Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States
5. Efforts to Develop an International Criminal Court and Code

Seminar Work:

• Status of Research and Writing

Reading Assignments:

1. Materials on the International Military Tribunal at Nüremberg.
2. Meron, International Criminalization of Internal Atrocities, 89 Am. J. Int'l L. 554-77 (1995).
3. Materials on the War Crimes Tribunals for Yugoslavia and Rwanda.
4. Roberts, The Laws of War: Problems of Implementation in Contemporary Conflicts, 6 Duke J. Comp. & Int'l L. 11 (Fall 1995).
5. Joyner, Strengthening Enforcement of Humanitarian Law: Reflections of the International Criminal Tribunal for the Former Yugoslavia, 6 Duke J. Comp. & Int'l L. 79 (Fall 1995).
6. Fenrick, Some International Law Problems Related to Prosecutions Before the International Criminal Tribunal for the Former Yugoslavia, 6 Duke J. Comp. & Int'l L. 103 (Fall 1995).
7. Scharf, The Politics of Establishing an International Criminal Court, 6 Duke J. Comp. & Int'l L. 167 (Fall 1995).
8. Bassiouni, The Codification of International Criminal Law and the Establishment of an International Criminal Court.

Class 11: Other Tribunals in the International Legal System

4 November 1997

Discussion Topics:

The instructors will chose and highlight those tribunals and processes listed below and not covered in student presentations, which present topical issues for discussion:

1. The Law of the Sea Tribunal
2. Introduction and History of Arbitral Tribunals
3. Arbitral Procedures and Choice of Law
4. Overview of Permanent Court of International Arbitration
5. Overview of U.S.-Iran Claims Tribunal
6. Overview of United Nations Compensation Commission
7. Overview of NAAEC Dispute Resolution
8. Overview of NAALC Dispute Resolution
9. International Trade Dispute Resolution and Domestic Law
10. NAFTA Dispute Resolution
11. WTO Dispute Resolution
12. International Law in National Legal Systems

Seminar Work:

• Status of Research and Writing
• Possible Class Presentations on the above listed discussion topics

In-Class Exercise:

• Designing an International Court to Address Legal Interests in Cyberspace.

Reading Assignments:

1. The Paqueta Habana (1900).
2. Falk, Domestic Courts and World Legal Order: A Statement of Purpose and Outlook.
3. U.S. v. Alvarez-Machain, 504 U.S. 655 (1992).
4. R. V. Horseferry Road Magistrates' Court, ex parte Bennett, [1994] 1 App. Cas. 42, [1993] 3 All E.R. 138, 3 W.L.R. 90, 98 Crim. App. 114. House of Lords, June 24, 1993.
5. Materials for the in-class exercise. These materials will be electronic texts available on the Web and linked to our web page.

Classes 12-14: Class Presentations

11 November 1997, 18 November 1997, & 25 November 1997