International law, national security, and human rights professor regan

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This course will examine how international law deals with the tension between two highly prominent concerns of the early twenty-first century: protecting national security and protecting human rights. We begin with an overview of basic principles of international law, and of U.S. domestic legal authority for national security activities. We then move to the regime of international law that is devoted to the protection of human rights. This includes treaties dealing with human rights in general; those that address specific subjects, such as genocide, torture, and the use of force by law enforcement officials; customary international law; and international criminal law. Our focus then moves to international humanitarian law, which is the legal regime that governs the use of force. This includes provisions that relate both to when parties may resort to the use of force, and how they must conduct themselves when they do so. We will explore the debate over whether humanitarian law should displace human rights law in situations of armed conflict, or whether the two bodies of law should be applied in ways that reconcile their approaches as much as possible.
The course then turns to counter-terrorism as a vehicle for exploring the interaction of human rights and humanitarian law. To what extent should counter-terrorism be seen as law enforcement, in which case human rights law governs, and to what extent should it be seen as armed conflict, in which case humanitarian law provides primary guidance? If it has elements of both, what should be the respective roles of human rights and humanitarian law in regulating counter-terrorism? We will focus in depth on four topics that raise these questions: targeted killing, detention, interrogation, and trial by military commissions.

The course will include extensive use of case studies and problems to explore the complex legal, political, and moral questions that arise with respect to the issues we discuss. In addition, events in the news are sure to provide constant vivid examples of the significance of the concepts that we will be discussing throughout the course. In these ways, the course will provide students with a practical understanding of international law through an in-depth examination of how it operates in a particular field.

Course Material
Dycus, Berney, Banks & Raven-Hansen, National Security Law (5th ed. 2011) (CB)

Dycus, Banks, Raven-Hansen & Vladeck 2015-2016 CB Supplement

Additional Material on Canvas
An understanding of the international issues regarding national security and human rights requires a basic understanding of the sources of national security authority for the executive, legislative, and judicial branches under U.S. law. The first three classes provide this foundation, which reflects the tensions and ambiguities in determining the scope of executive vis-s-vis legislative authority, as well as the difficulties in using judicial review to hold officials accountable. The next three classes provide an overview of basic principles of international law, dealing with treaties, customary law, and the ways in which such law is incorporated into domestic legal systems.
Domestic National Security Authority
Class 1: Presidential Power
Constitution, Article II

CB, 68-79; 25-39

CB Supp. 5-18

CB 368-369

Class 2: Congressional Power
Article I

CB 90-96; 99-105; 107-111

Authorization for the Use of Military Force, September 18, 2001 (al Qaeda and associated forces) (Canvas)

CB 307-312; 314 (begin with (c))-319 (through (e)); 320-322

Testimony by Harold Koh on Libya and War Powers before the Senate Foreign Relations Committee, June 28, 2011 (Canvas)

CB 369-375

Class 3: The Courts
CB 123-133; 142-155

CB 274 (Tonkin Gulf Resolution); 286-289

International Law: Sources and Status
Class 4: Treaties
CB 163

Restatement (Third) of the Law of Foreign Relations of the U.S., §102(2) (Canvas)

UN General Assembly: UN Charter Chapter IV (Canvas)

UN Security Council: UN Charter Chapter V (Canvas)

International Court of Justice Overview (Canvas)

CB 164 (through (A)(1))

U.S. Senate, Treaties (Canvas)

Vienna Convention on the Law of Treaties (excerpt) (Canvas)

International Court of Justice, Reservations to The Convention on the Prevention and Punishment of the Crime of Genocide (excerpt) (Canvas)

Self-executing Treaties: US v. Medellin (excerpt) (Canvas)

CB 171-173, Notes & Questions

Baker, Congress’s Role in Iran Nuclear Deal Shows Limits of Obama’s Power (Canvas)

Class 5: Customary International Law
Paquete Habana (Canvas)

CB 185-195

Nicaragua v. US: Customary v. Treaty law, CB 218-219 (up to ¶106); 220-223 (up to ¶193)

Al-Bihani v. Obama, CB 200-208

Class 6: The Domestic Effect of Treaties and Executive and Other Agreements

CB 182-184

Kiobel v. Royal Dutch Petroleum Co. and Extraterritoriality CB Supp. 35-53

United States v. PLO (excerpt) (Canvas)

International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts (Canvas)

The next three classes focus on the sources of law that comprise the international system for the protection of human rights. These include treaties that deal with human rights in general, those that address specific issues, and customary international law. It also includes a system of international criminal law that is designed to provide redress for serious violations of human rights.
Class 7: Treaties Part 1
UN Charter, Articles 1(3), 55, 56

United Nations Universal Declaration of Human Rights, Art. 1-21, 22-28

International Covenant on Civil and Political Rights, Art. 1-21, 24-28, 40-44

Nature of the Obligations under the ICCPR: Human Rights Council (HRC) General Comment 31 (Canvas)

Derogation: HRC General Comment 29 (Canvas)

Reservations: HRC Comment 24 (Canvas)

European Convention on Human Rights (Canvas)

Convention on the Prevention and Punishment of the Crime of Genocide (Canvas)

Class 8: Treaties Part 2

Convention against Torture (Canvas)

Supreme Court of Israel, Legality of the General Security Services Interrogation Methods (excerpt) (Canvas)

UN Code of Conduct for Law Enforcement Officials (Canvas)

UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Canvas)

McCann v. United Kingdom, CB 380-385

Class 9: Customary and Criminal Law

Restatement of Foreign Relations (Third) Section2 701-702 (Canvas)

Filartiga v. Pena-Flara (excerpt) (Canvas)

Rome ICC Statute: CB 233 (Note 10); Art. 5-8 (Canvas)

International Court of Justice, Bosnia v. Serbia (excerpt) (Canvas)

International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Excerpt 1, (Canvas)

The next seven classes deal with international law that governs the resort to and use of force, and its relationship to international human rights law in times of armed conflict.
Resorting to Force: Jus ad Bellum
Class 10: UN Charter and Customary International Law
CB 210-233 (through Note 9)

United Nations Charter Article 2(4) and Chapter VII

United Nations Participation Act, 22 USC §§287-287e-2

International Court of Justice Case Concerning Military and Paramilitary Activities in and Against Nicaragua (1986)

Kelly, The Reprisal Doctrine (Canvas)
Class 11: Self-Defense
The Caroline Self-Defense Standard (Canvas)

UN General Assembly Resolution 3314: Definition of Aggression (Canvas)

CB 343-365; CB Supp. 64-81
Class 12: Collective Self-Defense
CB 323-328 (up to B); 269-280; 281-282 (SEATO Treaty); 328-339

Class 13: Humanitarian and Peacekeeping Operations

CB 411-415

NATO, Kosovo Summary (Canvas)

Schwabach, The Legality of the NATO Bombing in the Federal Republic of Yugoslavia (Canvas)

CB 421-439

Conduct During Armed Conflict: Jus in Bello

Class 14: Sources of Law

CB 234-253

DoD Law of War Manual, Part XVII: Non-International Armed Conflict (excerpt) (Canvas)

International Military Tribunal (Nuremberg), Judgment of 1 October 1946 (excerpt) (Canvas)

International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Excerpt 2, (Canvas)

Class 15: IHL Relationship to International Human Rights Law
DoD Law of War Manual, Part I, Section 1.32, 8-13

International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (excerpt) (Canvas)

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (excerpt) (Canvas)

Inter-American Commission on Human Rights, Coard v. United States (excerpt) (Canvas)

Class 16: Protecting Civilians

DoD Law of War Manual, Part VI: The Conduct of Hostilities (excerpt) (Canvas)

International Committee of the Red Cross, Direct Participation in Hostilities, pp. 15- 17, 46-58 (Canvas)

Skerker, Just War Criteria and the New Face of War: Human Shields, Manufactured Martyrs, and Little Boys with Stones (Canvas)

Ford, Obliteration Bombing (excerpt) (Canvas)

Class 17: Detention and Treatment under IHL
CB 260-266

Geneva Convention, Common Articles 2 and 3

Office of Legal Counsel, Status of Taliban Forces under Article 4 of the Third Geneva Convention of 1949 (Canvas)

Attorney General Memo to the President, Decision re: Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban (Canvas)

President George W. Bush, Humane Treatment of al Qaeda and Taliban Detainees (Canvas)

Hamdan v. Rumsfeld, §D(ii), CB 1085-1086

Class 18: Detention and Treatment under Human Rights Law

United Nations, Body of Principles for Treatment of All Persons under Any Form of Detention or Imprisonment (Canvas)

European Court of Human Rights, Hassan v. United Kingdom (excerpt) (Canvas)

High Court of England & Wales, Serdar Mohammed v. Ministry of Defence (excerpt) (Canvas)
Counter-terrorism is now a major focus of U.S. national security policy. In the remainder of the course we will examine the extent to which this activity should be conceptualized as law enforcement, as armed conflict, or as a hybrid of the two, and the implications for the role of human rights law and humanitarian law in regulating counter-terrorism with respect to targeted killing, detention, interrogation, and trial by military commissions.
Class 19: Counter-Terrorism: Law Enforcement or Armed Conflict?
UN Resolutions 1368, 1373 (Canvas)

Negroponte Letter to UN Security Council, October 7, 2001

2002 US National Security Strategy

Blank, What’s in a Word: War, Law, and Counterterrorism (Canvas)

International Law Association, Final Report on the Meaning of Armed Conflict in International Law (excerpts) (Canvas)
Class 20: Targeting Killing: International Humanitarian Law
CB 376-378; 403-407; 397-399

CB Supp. 91-116

CB 446-447; 505-508

Class 21: Targeted Killing: International Human Rights Law

UN Rapporteur Report: Extrajudicial, Summary, or Arbitrary Executions (Canvas)

McMahan, Targeted Killing: Murder, Combat, or Law Enforcement? (Canvas)

Bowden, The Killing Machines: How to Think About Drones (Canvas)

Class 22: Detention Part 1

CB 764-766; 823-826; 1071-1075; 831-851

Class 23: Detention Part 2
CB 787-806; 877-883

Class 24: Interrogation

Convention against Torture and Torture Act, CB 915

CB 926-930; 900-906

CB Supp. 348-371

CB 920-922, Notes 2-3; CB 922-924

CB Supp. 374-383
Class 25: Military Commissions Part 1
CB 1063-1070 ; 1075-1094
Class 26: Military Commissions Part 2
CB 1096-1104; CB Supp. 428-431; CB 431-451

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