This course provides an introduction to the field of international law and organization, examining the history of ideas, legal doctrines, institutional and administrative structures developed over the last century to organize and legalize international economic and political life. We will examine the United Nations system, situating it in relationship to the broader institutional structures of public international law and regulation, private ordering and multinational enterprise, non-governmental organization and transnational judicial cooperation. The course will combine intellectual and institutional history with an examination of various constitutional and institutional arrangements. We will examine the functioning of these various international organizational mechanisms in a series of different substantive areas, paying particular attention to human rights, economic law and regulation, development, and the use of force. We will approach the organization and institutionalization of global society from the viewpoint of law, rather than political science. The assigned readings will focus on various ways to think about the legal organization of global order, and on the history of legal efforts to organize and institutionalize international affairs.
Evaluation: This course will require three 500 word papers and one 2,000 word final exam essay. The exam question will be handed out in the last class, and students will have until the end of the exam period to write the exam. During that time, you may speak with one another or anyone else, so long as you are confident the essay you write is your own work product. The essay will have a strict word limit (2000 words) and will not require research of any kind.
One half of the grade will be based on this take home exam-essay. The other half will be the average of three 500 word essays. Each should comment on the readings for one assignment. Students should select three of the assignments and write a two-page essay reflecting on the readings. These papers must be turned in to me before the class in which that assignment is discussed. One paper must concern an assignment considered during September, one must concern an assignment considered during October, and one must concern an assignment considered during November or December.
You may wish to purchase the following books, all of which are available at the bookstore. These readings are not available on Blackboard:
Thomas Weiss, David Forsythe, Roger Coate, The United Nations and Changing World Politics (4th ed. Westview Press, 2004). This is a straightforward college text about the UN, offering basic information and a generally conventional and upbeat assessment of the UN system. The course will presume that you know what is in this book – if you do not, you should read it.
David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2005). We will read chapters of this text throughout the semester – it will also give you a good sense of “where I’m coming from.”
Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions (Sweet and Maxwell, 2001) OR
Frederic Kirgis, International Organizations in their Legal Setting (2nd ed. West Publishing, 1993)
These are both excellent legal overviews, the one presented in the form of an American law “casebook,” the other in the form of a European “treatise.” If you are interested in the legal issues raised by the course, you should own one of them, at least, and consult it in preparing for each day’s topic. (Note: the Sands volume is more up to date than the Kirgis volume.)
David Kennedy, Of War and Law (Princeton University Press, 2006) This will be the main text for the final section of the course.
John Jackson, The World Trading System: Law and Policy of International Economic Relations (2nd ed. MIT Press, 1997). This is the best general presentation of the international economic law and institutional order – we will not focus on it much here, but a quick dash through this text will provide a useful counterpoint.
Kenneth Cain, Heidi Postlewait and Andrew Thomson, Emergency Sex and Other Desperate Measures: A True Story from Hell on Earth (Hyperion Press, 2004) is a collaborative memoir of a decade working with the UN and other humanitarian organizations across the globe – by turns amusing, fascinating and jejune.
Joel Baken, The Corporation : The Pathological Pursuit of Profit and Power (Free Press, 2004). An excellent overview of corporate law from a progressive left standpoint.
This course normally serves as an introduction to the field of international organization at Fletcher. It has often been taught from the perspective of the subfield of American political science called “international relations.” A great deal of theoretical and descriptive literature about international institutions has been generated by scholars in American political science departments whose theoretical orientation is to the various debates within this academic subfield. Those interested in pursuing this approach to the materials might begin by consulting the following edited collections of articles, all of which are on reserve at the library. By reading in these four collections, you can get a pretty good sense for the kinds of things American political science has to offer the study of international organization.
Kratochwil and Ruggie, eds. International Organization: A Reader (Harper Collins, 1994)
Martin and Simmons, eds., International Institutions: An International Organization Reader (MIT Press, 2001)
Paul Diehl, ed., The Politics of Global Governance: International Organizations in an Interdependent World (2nd ed. Lynne Rienner Publishers, 2001)
Nye and Donahue, eds., Governance in a Globalizing World (Brookings Institution Press, 2000)
Assigned Reading: The “Assigned Readings” are on the Blackboard website. We will discuss them. You should read them before class. Each week, you should ALSO consult Weiss, Forsythe and Coate, The United Nations and Changing World PoliticsAND either Sands/Klein or Kirgis to see if there is material relevant for that topic. We will cover one topic per week. Where the topic is divided into “A” and “B,” we will devote the first hour to A, and the second hour to B. “Supplemental” and “Background” readingsare meant for those with more time and interest.
ILO L220 International Law and Organization
Fletcher School of Law and Diplomacy
Prof. David Kennedy
Fall 2006 Syllabus PART ONE: GLOBAL ORDERS – THE BACKGROUND REGIMES September 6 - Class 1: People with Projects: the Disciplines of International Law and International Organizations Assigned Readings:
Damrosch, Henkin, Pugh, Schachter and Smit, International Law Cases and Materials (4th edition, 2001) pages xix-xii (Introduction) and xxvii-xxxvi (Historical introduction)
Fredric Kirgis, International Organizations in Their Legal Setting, Introduction, pages 1-6 (1977), and 2nd edition 1993, preface and table of contents.
David Kennedy: Charts of the History of International Law and Organization.
David Kennedy, The Disciplines of International Law and Policy, 12 Leiden Journal of International Law and Policy, 9-37 and 83-133 (1999).
You should get in the habit of looking at Weiss, Forsythe and Coate (hereinafter WFC) and either Kirgis or Sands to see what might be relevant. For example, for today, you might want to look at WFC table of contents, introduction and the various prefaces. The general introduction to Sands might be useful – the preface and introduction to Kirgis is in the assigned materials.
Anne-Marie Slaughter, The Technology: Principal Theories of International Relations, Chapter 1 in International Law and International Relations(Anne-Marie Slaughter, Hague Academy of International Law Lectures, 2000)
On center/periphery relations in the international legal order:
James Gathii, International Law and Eurocentricity 9 European Journal of International Law (1998) 184-211
Antony Anghie, Imperialism, Sovereignty and the Making of International Law, (Cambridge, UK ; New York : Cambridge University Press, 2005)
Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Mancester, 2000)
Balakrishnan Rajagopal, International Law From Below: Development, Social Movements and Third World Resistance (Cambridge Press, 2003)
On relations between international law and international relations:
Robert Keohane, International Relations and International Law: Two Optics, 38 (2) Harvard International Law Journal (Spring 1997), 487-502
Kenneth Abbot and Duncan Snidal, Why States Act through Formal Organizations, 42 Journal of Conflict Resolution(February 1998) 3-32.
Myres McDougal, Law and Power, A.J.I.L. 102 (1952)
On the history of international law:
Martti Koskenniemi, The Gentle Civiliser of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge University Press, 2001) particularly the introduction.
September 13 - Class 2: The Background Architecture of Public International Law
Damrosch, Henkin, Pugh, Schachter and Smit: “Lotus Case,” see page 67 note 5 and pages 68-77.
Article 38 of the Statute of the International Court of Justice.
Damrosch Henkin Pugh Schachter and Smit pages 1088-1097 (jurisdiction defined).
Malley, Manas, Nix, Constructing the State Extra-territorially; Jurisdictional Discourse, the National Interest and Transnational Norms 103 Harv. L. R. 1273 (1990) (excerpts)
Paul Schiff Berman, The Globalization of Jurisdiction, Author’s summary and pages 1-13.
Sovereignty and State Responsibility
Damrosch, Henkin Pugh Schachter and Smit: pages 1-12.
David Kennedy, Receiving the International 10 Connecticut Journal of International Law (1994)
Richard Ashley and R.B.J. Walker, Reading Dissidence/Writing the Discipline: Crisis and the Question of Sovereignty in International Studies, 34 Int’l Studies Q. 367-416 (1990) (excerpts).
Damrosch, Henkin, Pugh, Schachter and Smit: Excerpts from the Nottebohm Case, Pages 429(Section 3)– 434.
Annelise Riles, Note: Aspiration and Control: International Legal Rhetoric and the Essentialization of Culture, 106 Harvard Law Review 723 (1993) (excerpts)
David Kennedy, Some Reflections on “The Role of Sovereignty in the International Order," in State Sovereignty: The Challenge of a Changing World: Proceedings of the 1992 Conference of the Canadian Council on International Law, (1992) 237.
David Kennedy, The Nuclear Weapons Case: International Law at the Close of the Twentieth Century, in International Law, the World Court and Nuclear Weapons, Philippe Sands, ed. (1999) 460.
September 20 - Class 3: Consciousness as a Mode of Global Order
Liberalisms: Classical, Modern and Neo
Wihelm Roepke, Economic Order and International Law” 86 Recueil des Cours 203 (1954 II) (excerpts)
David Kennedy, Challenging Expert Rule: The Politics of Global Governance 27 Sydney Journal of International Law 5-28 (2005)
Thomas Franck, Legitimacy and the Democratic Entitlement in Gregory Fox and Brad Roth, eds., Democratic Governance and International Law, (Cambridge University Press, 2000)
Boutros Boutros-Ghali, An Agenda for Democratization, (United Nations Department of Public Information, 1996)
Human Rights and Environmental Principles: Rules and Standards, Law as Language and Legitimacy
David Kennedy, The Dark Sides of Virtue Chapters 1 and 2.
Philippe Sands, Greening of International Law, xxx-xlvii (1994)
Weiss, Forsythe and Coate have a great deal to say about this – see Chapters 5, 6 and 7 – which will also be relevant for our upcoming discussion of UN action in the humanitarian field.
Thomas Franck, The Power of Legitimacy Among Nations (1990)
Thomas Franck, Fairness in International Law and Institutions (1995)
Richard Falk, Environmental Protection in the Era of Globalization, 6 Yearbook of International Environmental Law 3, 3-7 and 24-25 (2001)
PART TWO: BUILDING GLOBAL ORDERS
September 27 - Class 4: Private Ordering A. Corporations, Contracts and Private Law Assigned Readings:
Dan Danielsen, How Corporations Govern: Taking Corporate Power Seriously in Transnational Regulation and Governance, 46 (2) Harvard International Law Journal 405 (2005)
Dan Danielsen, Corporate Power and Global Order, forthcoming in Anne Orford, ed., International Law and its Others (Cambridge University Press 2006)
Gunter Teubner and Andreas Fischer-Lescano, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law,Michigan Journal of International Law 25 (2004) 999-1045.
John Braithwaite and Peter Drahos, Global Business Regulation, Chapter 9, Corporations and Securities, (Cambridge Press 2000) 143-174
Joel Bakan, The Corporation: the Pathological Pursuit of Profit and Power
Gunter Teubner has authored a range of essays on the significance and structure of private ordering and semi-autonomous systems of expertise for global ordering. A list of publications in English is at http://www.jura.uni-frankfurt.de/ifawz1/teubner/Publika/PublikaEngl/index.html.
John Braithwaite and Peter Drahos, Global Business Regulation, Table of contents and Introduction (Cambridge Press, 2000) 1-36
John Braithwaite and Peter Drahos, Global Business Regulation, Chapter 23, Regulatory Webs and Globalization Sequences (Cambridge Press, 2000)
October 4 - Class 5: Global Advocacy and Judicial Networks
Judicial Actors and Transnational Law
Harold H. Koh, Transnational Legal Process, 75 Nebraska Law Review 181 (1996)
Anne-Marie Slaughter, International Law in a World of Liberal States, 6 Eur. J. Int’l. Law. 503 (1995)
Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995)
Bryant G. Garth and Yves Dezalay, Dealing in Virtue: International Commercial Arbitration in the Constitution of a Transnational Legal Order 1-32 (1996)
Networks, NGOs and “Civil Society”
Jessica Mathews, Power Shift, 76 (1) Foreign Affairs 50 (1997)
Annelise Riles, The Network Inside Out, (The University of Michigan Press, 2000) (excerpts)
John Gerard Ruggie, Global_governance.net: The Global Compact as Learning Network, 7 Global Governance 371-378 (2001)
Wolfgang Reinicke and Francis Deng, Critical Choices: The United Nations, Networks, and the Future of Global Governance – Executive Summary, (UN Vision Project on Global Public Policy Networks, 2000)
Thomas Weiss and Leon Gordenker, eds., NGOs, the UN, and Global Governance (Lynne Rienner Publishers, 1995)
October 11 - Class 6: Global Ordering Through Diplomacy
A.Unilateralism, Bilateralism and Ad Hoc arrangements
Brett Schaefer, Unilateralism Saved Lives in Asia, Heritage Foundation, January 11, 2005.
Ruth Wedgwood, Unilateral Action in a Multilateral World in Multilateralism and U.S. Foreign Policy: Ambivalent Engagement, S. Patrick and S. Forman, eds., (Rienner, 2001)
The White House Fact Sheet, Proliferation Security Initiative (September 4, 2003)
Stephan G. Brooks and William C. Wohlforth, International Relations Theory and the Case against Unilateralism, 3 Perspectives on Politics, No.3, (September 2005), 509.
Transforming Alliances: Coalitions of the Willing vs. Enduring Regional Alliances, from webmemo #475, Heritage Foundation, proceedings of November 6-7, 2003 conference “The Viability of International Regimes and Institutions”
11 European Journal of International Law, No.1, (2000) Articles from the Unilateralism in International Law: a United States –European Symposium.
B.Multilateral Conferences and Rule-Making
Gill Seyfang and Andrew Jordan, The Johannesburg Summit and Sustainable Development: How Effective Are Environmental Mega-Conferences in Yearbook of International Co-operation on Environment and Development2002/03 (Earthscan, 2002)
Ileana Porras, The Rio Declaration: A New Basis for International Cooperation” in The Greening of International Law, Sands, ed.,(1994): 20-33
Peter M. Haas, UN Conferences and Constructivist Governance of the Environment, 8 Global Governance Issue 1 (Jan-March 2002): 73
Karin Backstrand and Michael Saward, Democratizing Global Environmental Governance? Stakeholder Democracy at the World Summit for Sustainable Development, Paper for Presentation at the Fifth Pan-European Conference on International Relations, The Hague, (September 9-11, 2004)
October 18 - Class 7: Intergovernmental Organizations
A.League of Nations
David Kennedy, The Move to Institutions, 8 Cardozo Law Review 841 (1987)
Alejandro Alvarez, The New International Law Grotius Society, 35-51 (April 16, 1929)
Jessup, The Functional Approach as Applied to International Law (1928)
Leo Gross, The Peace of Westphalia 1648-1948, 42 A.J.I.L. 20 (1948)
United Nations: History and Reform
Roland Barthes, The Eiffel Tower and Other Mythologies, (Hill and Wang, 1979)
UN Charter at www.un.org/aboutun/charter/index.html
UN Reform at www.ReformtheUN.org. See “UN Reform, An Introduction” and “Follow-up and Implementation on UN Reform Document”
Nathaniel Berman, Modernism, Nationalism, and the Rhetoric of Reconstruction, 4 Yale Journal of Law and the Humanities 351 (1992)
David Kennedy, A New World Order: Yesterday, Today and Tomorrow 4: X Transnational Law and Contemporary Problems 330 (1995)
This would be a good point to read Weiss, Forsythe and Coate, Part One, Chapters 1,2,3 and 4 if you have not yet done so.
PART THREE: CONSTITUTIONAL QUESTIONS
October 25 - Class 8: Institutional Form: Bargaining and Legalization: WTO and the Trade Regime Assigned Readings:
Judith Bello, The WTO Dispute Settlement System Understanding: Less is More, 90 AJIL 416 (1996)
John Jackson, The World Trading System: Law and Policy of International Economic Relations, Table of Contents and Chapter 1.
David Kennedy, The International Style in Postwar Law and Policy: John Jackson and the Field of International Economic Law,American University Journal of International Law and Policy, 671 (1995)
Nathaniel Berman, Legalizing Jerusalem, Or, Of Law, Fantasy and Faith” 45 Catholic U. L. Rev., 823-835 (1996)
November 1 - Class 9: Structuring the Transnational Social State: The European Union, Market Freedoms and Technocratic Order Assigned Readings:
Thomas Christiansen, European and Regional Integration, in The Globalization of World Politics(J. Baylis and S. Smith eds, 2nd ed, 2001): 494-510.
David Kennedy, Dark Sides of Virtue Chapter 6
David M. Trubek and Louise G. Trubek, Hard and Soft Law in the Construction of Social Europe: the Role of the Open Method of Co-ordination 11 European Law Journal, No. 3, (May 2005): 343-364.
Burkard Eberlein and Dieter Kerwer, New Governance in the European Union: A Theoretical Perspective in 42 Journal of Common Market Studies No. 1 (2004): 121-42.
Summary of the EU Constitution adopted by the European Council in Brussels on 17/18 June 2004, http://europa.eu.int/constitution/download/oth180604_3_en.pdf
Pertti Ahonen, Soft Governance, Agile Union? Analysis of the Extensions of Open Coordination in 2000, European Institute of Public Administration, Maastricht, (18 April 2001)
Neill Nugent, European Union Law and the Courts, in The Government and Politics of the European Union (5th ed., 2003): 235-258
November 8 - Class 10: The Legal Structure of Intergovernmental Organizations
A.Plenary: Membership, Voting, and Status
Assigned Readings: On Membership:
UN Charter, read the relevant provisions on Membership
Ioannis N. Grigoriadis, Turkey’s Accession to the European Union: Debating the Most Difficult Enlargement Ever, 26 SAIS Review, No. 1 (Winter-Spring 2006)
The relevant issues are developed in Sands, Chapter 16 and Kirgis, Chapter 2
UN Charter, read the relevant provisions on Voting
C. Wilfred Jenks, Unanimity, The Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organizations, Cambridge Essays in International Law, Essays in Honor of Lord McNair 48-63 (1965)
Philip Allott, Power Sharing in the Law of the Sea 77 AJIL 5-8 (1983)
The relevant issues are developed in Sands Chapter 11 and Kirgis, Chapter 2.5
Corbett, What is the League of Nations? British Yearbook of International Law (1924) 119-148 (excerpts)
The relevant issues are developed in Sands Chapter 15, or Kirgis Chapter 1.1-1.3
Michael P. Scharf, Musical Chairs: The Dissolution of States and Membership in the UN, 28 Cornell International Law Journal (1995): 29-69.
B. Powers: Declaring, Denouncing, Deciding, Spending, Rule-making
UN Commemorative Calendar
Oscar Schachter, The United Nations Legal Order: An Overview, in Christopher Joyner ed, The United Nations and International Law, 1-19
Paul Szasz, General Law-Making Processes, in Christopher Joyner ed., The United Nations and International Law, 27-44
“The UN Finance in Comparative Perspective” (2006) available at www.globalpolicy.org/finance/tables/fincomp.htm
You might look at Kirgis, Chapter 3-4
A good collection of essays on the relationship between international law and the UN system in various substantive fields is: Christopher Joyner, ed., The United Nations and International Law (ASIL and Cambridge University Press, 1997)
November 15 - Class 11: Administrative Structure
A.The Secretary General: Leader and Clerk, Norm and Policy Entrepreneur
Oscar Schachter, Dag Hammarskjold and the Relation of Law to Politics 56A.J.I.L. 1 (1962)
David Kennedy, Leader, Clerk or Policy Entrepreneur? The Secretary General in a Complex World. In Simon Chesterman, ed., Secretary or General?: The Role of the United Nations Secretary General in World Politics (Cambridge, 2006)
There is a voluminous literature on the role of the Secretary General – Weiss, Forsythe and Coate have some words on it, as do Kirgis and Sands, but there are numerous collections of essays from every decade of the UN’s life, including the volume in which my own assigned essay is published.
International Administrative Law
Kingsbury, Krisch, Stewart and Wiener, special eds., The Emergence of Global Administrative Law, 68 Law and Contemporary Problems, (Summer/Autumn 2005)
J. Berteling, Inter-Secretariat Co-ordination in the United Nations System, Netherlands International Law Journal, 21-42 (1977)
A.P. Sloan, Jr. The Management of General Motors, in Pugh, Organizational Theory, 182-188 (1971)
Norman Dufty, Organizational Growth and Goal Structure: The Case of the ILO, 26 International Organization 479 (1972)
PART FOUR: MOBILIZING GLOBAL ORDERS FOR ACTION
November 22 - Class 12: International Institutions in Action: Peace
A. Policy Making, Humanitarian Operations, Coordination and the “Right to Protect”
David Kennedy, The Dark Sides of Virtue, Chapter 4 and 9
David Rieff, A Bed for the Night: Humanitarianism in Crisis (Simon & Schuster, 2002): 1-25.
This might be a good time to look at Kenneth Cain, Heidi Postlewait and Andrew Thomson, Emergency Sex and Other Desparate Measures: A True Story from Hell on Earth (Hyperion Press, 2004)
Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law (Oxford University Press, USA, 2001) (excerpts)
Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect (December 2001)
B.Refugees and the UNHCR
David Kennedy, The Dark Sides of Virtue, Chapter 7
Alex Cunliffe and Michael Pugh, UNHCR as Leader in Humanitarian Assistance: A Triumph of Politics Over Law? in Nicholson and Twomey, eds., Refugee Rights and Realities (1999)
Gil Loescher, The UNHCR and World Politics, Chapter 1, “The UNHCR at 50: State Pressures and Institutional Autonomy, (Oxford University Press, 2001): 1-20.
November 29 - Class 13: Development and Economic Affairs
David Kennedy, The Dark Sides of Virtue, Chapter 5
The Millenium Development Goals and the United Nations Role, Fact Sheet, (United Nations Department of Public Information, October 2002)
The Barcelona Development Agenda, Forum Barcelona (2004)
Tina Rosenberg, The Free Trade Fix, The New York Times Magazine, (August 18, 2002)
Weiss, Forsythe and Coate cover this in Chapters 8-10
David Kennedy, The 'Rule of Law,' Political Choices and Development Common Sense, in The New Law and Economic Development, David M. Trubek, and Alvaro Santos, eds., (Cambridge University Press, 2006).
December 6 - Class 14: War as an International Legal Institution Assigned Readings:
Sigmund Freud, “Thoughts for the Times on War and Death” (1915)
David Kennedy, Of War and Law (Princeton, 2006) Introduction, Chapters 1 and 3.
Surakiart Sathirathai, Peace and Security: the Challenge and the Promise, 41 Texas International Law Journal, Special, (2005)
Supplemental Readings: On preventive action, sanctions and peacekeeping.
Cortright and Lopez, Sanctions and the Search for Security, Chapter 11, Reform or Retreat? The Future of UN Sanctions Policy, (2002): 201 –224
An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping, Report of the Secretary General of 31 January 1992, A/47/277 - S/24111 with Supplement of 3 January 1995, A/50/60 - S/1995/1
Report of the Panel on United Nations Peace Operations of 21 August 2000, , A/55/305 – S/2000/809, (Only table of contents and executive summary)
Thomas Franck, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge University Press, 2002): 20-31
On the legality of the use of force in Iraq
20 March 2003 Letter from US Permanent Representative to the UN
Resolutions in 1990: 660, 661, 667, 678, 687
Resolution 1441 (2002)
Michael Glennon, Why the Security Council Failed 82-3 Foreign Affairs 16 (2003)
UK Attorney General’s statement on the legality of the conflict in Iraq
On the UN Charter, the ICJ and the Role of the Security Council
Jose Alvarez, Judging the Security Council 90 AJIL (1996)