INTERNATIONAL LAW.

 

Stuart S. Malawer, J.D., Ph.D., Dipl., Distinguished Service Professor of Law and International Trade, George Mason University

CLASS 1. Introduction -- To International Law & US Role  in the Global Legal System --
Focus on Law & Foreign Policy.

1.27.21

Case Digest Practice---Paquete Habana (S. Ct. 1900). What are the facts, legal issue & decision (holding) of the Supreme Court? 

Model Brief of Paquete Habana (S. Ct. 1900).

                  ....................................................................

Malawer, "Biden -- Global Trade, Law and National Security." China and WTO Review (January 20, 2021).




Recent International Law Cases in Federal Courts: Qatar Financing Terrorism (2020); Restoration of WW II Property (2020); Saudi Assassination of Khashoggi (2020).





." Financial Times (May 3, 2017).  "US and Iran in ICJ (Sanctions)." CBS.AP (Aug 28, 2018).



 



Malawer, "Trump, Trade and National Security." New York Law Journal (March 2018). 
Malawer,  "Trump and Litigation: From Queens to the World Stage." China and the WTO Review (2020).


 

            .......................................................................................

 
                     Discussion Questions.
 
 
  • What is the definition of international law in terms of rights and obligations of states and others?
  • What is the relevance of international law for U.S. foreign policy? What are some recent examples?
  • What seemed to have been former President Trump's attitude toward international law and US national interests? His view of multilateral treaties and international organizations? President Biden's?
  • What are the contending views in the U.S. concerning the efficacy of international law today and in foreign policy decisionmaking?
  • What is the significance of the growing role of American unilateralism and focus on national security on the international legal system?
  • What is the role of the Congress and the president in setting foreign policy and in treaty relations?

     

     

    CLASS 2. Some Basics of Customary International Law and the Law of Treaties

    2.3.21

     

    Sources of International Law and Other Concepts.

     

    Restatement: §§101-103 (definition, sources & evidence).


    Carter:  1-3, 32-33, 95-99. (Lotus Case)


    Docs.: ICJ Statute (Arts. 36, 38); Vienna Convention on Law of Treaties (Articles 11, 26, 27, 31, 46, 52, 53, 62).


                     Malawer, "Obama's and Carter's Iranian Hostage Agreements." Richmond Times-Dispatch (January 31, 2016).
     

     

    ·   Statute of International Court of Justice (Art. 38 Sources of I.L.; Art. 36 Compul. Jurisd.).

    ·   S.S. Lotus (PCIJ 1927). (Extraterritorial Jurisdiction) (Territorial Presumption).


    ·   Vienna Convention on Law of Treaties.

    ·   Interpretation, Validity & Termination of Treaties.

    ·   Jus Cogens

    ·   Customary International Law and Treaties.

     

                               Discussion Question.  
     
    • What are the sources of international law under ICJ Statute Article 38?
    • What are subsidiary sources of international law?
    • What is the role of national court decisions?
    • What is the concept of extraterritorial jurisdiction under the Lotus Case?

    • What are the basic provisions of the Vienna Convention on the Law of Treaties as to treaty law?

    Formation of treaties?
    Interpretation of treaties?
    'Jus Cogens' and treaties?
    Duress and treaties?
    Differences between 'void' and voidable treaties'?
    National law and treaty termination?

    • What is the role of state consent in treaty and customary international law obligations?
     

     

    CLASS 3. International Law in the United States (Part 1).

    2.10.21

     

    Treaties and U.S. Law.

     

    Restatement: §§111 – 115.


    Carter: 153-173, 186-190.


    Docs.: U.S. Constitution (Articles I, II, III, VI).

     

    ·   U.S. Constitution. (Article VI -- Supremacy Clause).

    ·   Mo. V. Holland (1920). (Supremacy of Treaty Law,  Federalism & Supremacy of Constitution).

    ·   Reid v. Covert (1957). (Constitutional Supremacy over Exec. Agreements as to Individual Rights).

    ·   Asakura v. Seattle (1924). (Local or State Law and Prior Treaty).

    ·   Medelin. v. Texas (2008). (Int’l Court of Justice judgment non-self-executing).


         Boumediene. v. Bush (2008). (Detainees have constitutional right of habeas corpus).

     

    Political Question Cases & Non-Justiciablity: Goldwater (Taiwan) (1979) (unilateral treaty termination / pol question doctrine), Bush (ABM) (2002) (treaty termination), Reagan (ABM / SDI) (1983) (reinterpretation),  Baker v. Carr (1962) (pol. question -- political dept., judicial discoverable standards).


    Breyer. "The Supreme Court & the New International Law." (ASIL 2003). Video (2015).
               
     
                                              Discussion Questions.  

    • What is the role of the Supreme Court in deciding cases involving foreign transactions and foreign parties in today’s multipolar and interdependent world? What about looking at foreign court decisions? Looking at international tribunals?
    • What do Articles II (making treaties) and VI (‘supremacy’) of the Constitution provide?
    • What determines if an international agreement is ‘self-executing’ or ‘non-self-executing’?
    • What does Mo. V. Holland state as to treaties and the 10th Amendment, federalism, constitution and treaties?
    • What does Reid v. Covert state as to the application of the Constitution to treaties (executive agreements) and individual rights?
    • What does Asakura v. City of Seattle state as to a treaty (FCN) and a municipal ordinance?
    • Do states have the right to restrict immigration or refugees?
    • What does Medellin v. Texas state as to International Court of Justice cases (under ICJ Statute and UN Charter) as binding as national law and on the states in the U.S., and the Optional Protocol (to the Vienna Convention on Consular Relations) as to jurisdiction?
    • What is the 'political question doctrine' and its application to treaty termination and treaty reinterpretation?
    • Can the President break a treaty? What  are the domestic and international legal consequences?
    • Is the President bound by customary international law? Can he violate it? Can Congress violate it? Can the Congress violate a treaty?
    • What are the domestic and international legal consequences of the Congress violating a treaty and customary international law?

     

     


     


    CLASS 4. International Law in the United States (Part 2).

    2.17.21


    Presidential Powers & the Constitution -- Executive Agreements, Terrorism & National Security.

    Restatement: §§303, 326, 339.

    Carter: 190 – 240.


    Docs.: International Economic Powers Act (IEEPA), Alien Tort Statute (ATS), Torture Victims Protection Act (TVPA).


                  Malawer, "Delegation of Authority (Chart)."

     

                "Iranian Hostage Accords and Congress." New York Times (December 25, 2015).

                 

     

                  "Iranian Hostage Accords and Congress." New York Times (December 25, 2015).

     

     

                    "Obama's and Carter's Iranian Hostage Agreements." Richmond Times-Dispatch (Jan. 31, 2016).

                  
                       Washington Post (Feb, 24, 2019)

     

                     

     

    • U.S. Constitution.
    • Curtis –Wright (1936). (Separation of Powers / Executive Authority / Delegation).
    • Youngstown (1952). (Separation of Powers / Executive Authority / 'Commander-in-Chief').
    • Consumers Union v. Kissinger (1974) (Separation of Powers / Delegation / Exec. Agreement).
    • U.S. v. Pink (1942). (Follows Belmont Case.) (Executive Agreements and state law) (Settlement of Claims).
    • Dames & Moore v. Regan (1981). (EA and Settlement of Claims / Suspension of litigation).
    • Guy Capps v. U.S. (1953). (Executive agreement contra prior ag cong. legislation)

          • States Secret Privilege" and "extraterritorial rendition."
          • "Torture Memo." Foreign Intelligence Surveillance Act (FISA).

                                         
                                    Executive Actions & Individual Rights under the Constitution.
     
     
       Hamdi v. Rumsfeld (2004) (Military Commissions / Detention / AUMF) (indefinite detention).
       Hamdan v. Rumsfeld (2006). (Military Commissions / Detention / DTA) (military commissions).   
      Boumediene (Bush) (2008) (individual rights abroad, detainees).

     

                                   DISCUSSION QUESTIONS.

     

    • What is the relevance of 'separation of powers' and 'delegation of authority' in the context of Presidential authority in regulating foreign trade (for example, arms embargo) and executive action generally and to foreign policy?
    • Does judicial review extend to national security / foreign policy cases? To former President Trump's immigration ban? To President Biden's recent actions?
    • What is the extent of executive authority (commander-in-chief) and regulation of foreign commerce (especially during war time)?
    • What is Justice Jackson's paradigm (three-part test) for determining the constitutionality of executive action?
    • What does Circular 175 state at to the three types of executive agreements?
    • What is the 'Case Act' and congressional reporting requirement?
    • Does an executive agreement override state law?
    • What is the power of the president to settle claims of US nationals (suspend pending litigation) as part of his authority to recognize foreign governments and diplomatic relations?
    • What is the power of the president to settle claims pursuant to the IEEPA (the Algiers Accords and Iran) as to freezing assets and suspending claims?
    • What has Congress done to compensate Iranian hostages & dropping sanctions? 
    • What is the Constitutional right that requires detainees / 'enemy combatants' (Guantanamo) to have neutral panels, writ of Habeas Corpus? Does the Constitution apply to military commissions abroad?
    • What is the constitutionality of military commissions (Guantanamo) under AUMF (2002) and subsequent statutes?
    • Does 'Common Article 3' preclude military commissions from imposing criminal punishment (as opposed to detention)?
    • What was the 2006 / 2009 Military Commissions Acts?
    • What is the legality of military commissions under international law? Under the inherent powers of the President?
    • Does the Constitution (habeas corpus) apply to detainees / enemy combatants?
    • What is the 'torture memo' and 'extraordinary rendition'?
    • What is FISA (warrantless electronic searches) and the 'state secrets privilege' as to evidence?
    • What is the Alien Tort Statute and the Torture Victim Protection Act (1992)?
    • What are some newer statutes? 2001 Antiterrorism Act? Terrorism Exception to the Foreign Sovereign Immunity Act?
     

     

    CLASS 5. International Law in the United States (Part 3).

    2.24.21

    Customary International Law and U.S. Law and Foreign Actions.

     

    Carter: 240 - 268.


    ·  Filartiga v. Pena-Irala (1980). (ATS & Torture as customary I.L.)

    ·  Sosa v. Alvarez-Machain (2004). (Alien Tort Statute -- not as to 'arbitrary detention'.)

    ·  The Schooner Charming Betsy (1804). (Consistency Presumption of domestic law to International Law).

    Newer Cases


    Kiobel v. Royal Dutch Petroleum  (corporate liability?("sufficient force" & no extraterritorial effects of  ATS) (S. Ct. 2013); 

    Daimler Case (Argentine Dirty War) (no jurisd. of parent corp. via local subsidiary for affilates actions) (S.Ct. 2014).

    Nestle & Cargill Case (child slavery for cocoa production into Ivory cloast) (upheld under Kiebel, no extraterritorial effect to U.S.corporation)  (S.Ct. 2021)

     
            

                   
                

    • Alien Tort Statute (1791) (non-U.S. nationals).
    • Torture Victim Protection Act (TVPA) (both U.S. and non-U.S.) (U.S. citizens only) (2001).




                         

                                     Discussion Questions.               

     
    • What did Paquete Habana state about customary international law as U.S. law under the Constitution?
    • What did Filartiga hold as to torture and customary international law and its adjudication under the Alien Tort Statute?
    • In what sense does Sosa (2004) significantly restrict the Alien Tort Statute?
    • What is the debate concerning jurisdictional nature and common law causes of action under the  Alien Tort Statute?
    • What is the rule of "consistency" of domestic law with international law?
    • What international law do we look at under the Alien Tort Statute? That of 1791 or today?
    • What is the relevance of the Alien Tort Statute to customary international law?
    • How significantly did Kiobel (S. Ct. 2013) limit the Alien Tort Statute with its "sufficient force" requirement as to extraterritoriality? 
    • What does Daimler Case (S.Ct. 2014) state as to local subsidiaries?
    • What is the standing to bring actions by non-U.S. nationals under the Torture Victim Protection Act (1992), the Alien Tort Statute (1789)? Anti-Terrorism Act (2001)?

     

     

     

     

    CLASS 6. International Law in the United States (Part 4). 

    3.3.21

     

    State Law (State Sanctions) and International Law.

     

    Carter: 269 – 282.

     

    • Crosby v NFTC (Burma Sanction Case) (2000). [Federalism and Implied Preemption -- Subsequent federal law over prior state law -- when there is a conflict.]

     

     

    • Amer. Insurance Assoc. v. Garamendi (WWII German Insurance Claims) (2003). [Federalism -- Implied Preemption -- Exec. Agreement over prior state law -- when there is a conflict.]

    • Zchernig v. Miller (state inheritance law) (state law invalid under 'dormant foreign affairs preemption' -- when state law has more than an 'incidental effect' of foreign affairs) (1968).

    • Barclays Bank v. Tax Bd. of California (state worldwide income tax) (not invalidated under 'dormant foreign affairs preemption'] (1994).

     

     

     

     

          • State disinvestment and sanctions law.
          • Role of States in Global Economy.

     

     

                                Discussion Questions.


    • What generally is the relationship between foreign affairs and federalism?
    • What is the foreign affairs powers of the Congress as to state law? Which prevails?
    • How does federal 'preemption' work in the context of state law on foreign affairs? What is 'implied preemption'? Why do states seem to have authority on international tax cases and not succession / inheritance cases?
    • What is the impact of a subsequent 'executive agreement' on prior state law concerning foreign affairs?
    • What is the relevance of preemption as to states' disinvestment laws or proposals (BDS)? What if states or pension funds restrict investment into companies doing business with (Israeli) West Bank firms? What about with various Moslem countries in the Middle East because of terrorism? What has been the legacy of such disinvestment laws concerning South African 1980's apartheid? 
     

     

     


    CLASS 7. International Law in the United States (Part 5).


    3.10.21

    Sovereign Immunity, Act of State Doctrine, Alien Tort Statute, Foreign State Compulsion.

     

    Restatement: §§441, 443-444, 451-456.


    Carter 535-544, 562 – 572, 579 - 582,  585-592, 613 – 628, 637 - 639.

    Docs.: 301-316 (For. Sov. Immunity Act), 355-361 (anti-terrorism statutes).


    UPDATES --------  





                                                               SOVEREIGN IMMUNITY


    • Schooner Exchange (1812) (Absolute Sovereign Immunity). 

    • Tate Letter (1952) (Restrictive Sovereign Immunity).

    • Foreign Sovereign Immunities Act (1976). 

    • Austria v. Altman (2004). (Exec. Suggestion  &  'Expropriation Exception.') 

    • Letelier Case (1980) ('Tort Exception' in US). 

    • Murphy v. Iran (2010). (Beirut Bombing) ('State Terrorism  Exception -- State Terrorism List'). 

                                                       Act of State Doctrine.

    • Underhill v. Hernandez (1897) (ASD -- General Rule).

    • Sabbatino Case (1964) (Act of State Doctrine -- General Rule / 'No International Law Exception'). (Amend. to FSIA of 1976 changes this.)

    • "Bernstein Exception" (Executive Suggestion as to ASD). 

    • "Sabbatino Amendment to FSIA." (1964) ('International Law Exception for Expropriations' -- Exception to General Rule in favor of ASD).

    •  City Bank v. Cuba (1972) (Act of State Doctrine and counterclaims).


                                                                Terrorism.


                                     Discussion Questions.
       
       
      • What are the five bases of jurisdiction in international law?
      •  What is "Absolute Sovereign Immunity"? "Restrictive Sovereign Immunity"? What is the Tate Letter? 'Compulsion Doctrine'?
      • What is the Foreign Sovereign Immunities Act? What is the general rule? What are the exceptions provided in the act and what do they do -- waiver, commercial, tort, terrorism, expropriation?
      • What is JASTA (2016)? Is this a form of 'judicial imperialism? What 'excception'does it create? What does this say about the role of domestic courts and private plaintiffs in the foreign policy process and international legal system? Is it better to perhaps allow foreign plaintiffs in foreign countries go to US courts over US foreign policy than have them go off angry?
      • What is the "Act of State Doctrine"?  What is the 'General Rule' and what is the Sabbatino Amendment (exception)? What is the "International Law Exception" to it?
      • In what sense is the Act of State Doctrine primarily in private litigation (not involving a foreign government) while Sovereign Immunity is only in an action involving foreign governments?
      • What is an "Executive Suggestion" and the "Bernstein Exception"? What is the rule concerning execution of foreign government money when subject to U.S. sanctions?
      • What is the  newer 'terrorism exception' (2008) to the Foreign Sovereign Immunity Act? The JASTA exception (2016)? How is this different from the existing terrorism exception (not limited to State Dept. listing of state-sponsors of terrorism)?
      • What do the newer 'antiterrorism statutes' do concerning the right of American victims?
      • What does the 2015 US Victims of State Terrorism Act (frozen funds)." provide?

       

                            

      CLASS 8. Midterm Review

      3.17.21

       

       

       CLASS 9. MIDTERM.

      3.24.21

       

      CLASS 10. International Courts, Regional Courts, Specialized Courts, Domestic Courts and International Arbitration

      3.31.21


        Domestic / International Courts, International Arbitration,.

      Carter: 295 – 318, 360 – 365, 381 - 382,  415 - 428.

      Docs.: Courts -- 101-136, 167-201, 942 - 974 (ICJ, NY Convention, ICISD / World Bank Convention, International Criminal Court.

       

       
      • Statute of International Court of Justice (ICJ) -- Article 36 (2) 'Optional Clause / Compulsory Jurisdiction'. 
      •  Iran v. U.S. "Oil Platform Case") (ICJ 1996) (bilateral or special agreement --FCN Treaty-- as to jurisdiction / provisions in FCN Treaty ICJ Statute 36(1).
      •  Certain Norwegian Loans (France v. Norway) (1957) (reciprocity as to domestic reservation / conditional acceptance).·  
      • Nicaragua v. U.S. (1984) (withdrawal of consent, not valid, time to be reasonable).
      • International Arbitration and New York Convention on Arbitration (foreign arbitral awards for international business).
      • Foreign Judgments -- Hilton-Guyot ('comity' only / common law rule) (uniform state leg. -- OK but exceptions)
      • World Bank Convention (International Centre for Settlement of Investment Disputes) (ICSID).
      • Arbitration v. Litigation in contracts -- Enforceable by Int'l Convention as domestic law v. not enforceable as domestic  law)
      • FCN Treaties (older bilateral treaties).  
      • Newer Bilateral Investment Treaties (BIT) (Investor State Dispute Settlement -- ISDS).


       

                                                                                        

       
       
                                                                   Discussion Questions.
       
       
       
      •  When is there compulsory jurisdiction of the International Court of Justice? Article 36(2) of the Statute of he ICJ? When can this be withdrawn? What do the ICJ cases say about 'special agreements', reciprocity, and withdrawal of consent relating to compulsory jurisidction?
      • How does the New York Convention on Arbitration provide for national enforcement of private corporate arbitration? How is this different from foreign judgments in US courts?
      • What do FCN Treaties provide for national treatment? What about the World Bank (ICSID)?

      • What do BITs (investment treaties) provide for in terms of dispute settlement for claims by foreign investors?
      • What is the 'Investor State Dispute Settlement' provisions (ISDS) in investment agreements? 

       

       

      CLASS 11. World Trade Organization, Specialized International Trade Law & Litigation. 


       4.7.21



      Carter: 401 - 408.
      Docs.: 167 - 197 (WTO and DSU)
       
      Videos:

                     "Case Studies of Dispute Settlement in the WTO / DSU." (WTO 1997).


                      "From Gatt to the WTO." (1998). 



      "What's Next for the WTO?" Council on Foreign Relations (Backgrounder) (Feb. 16, 2021).



      Malawer, "Uruguay Round." (PowerPoint) (#47, 48, 63).
      Malawer, " WTO Dispute Resolution." (PowerPoint) (Basic #14 - 16; DSU 24 - 28, 33, 41 - 54). 


       

       DSU (Edited).


         
         
         
      Malawer, "Chinese Economic Cyber Espionage -- U.S. Litigation in the WTO & Other Diplomatic Remedies." Georgetown Journal of International Affairs (Summer 2015).

        

                                    Discussion Questions.

       

      • What is the process of settling disputes within the WTO?
      • What is the role of the consultation stage, panels and the Appellatte Body (AB)?
      • What has been the issue of sovereignty concerning the WTO generally (as to negotiating trade rules) and with the Dispute Resolution system concerning litigating these rules?
      • In what sense is the WTO and the Dispute Resolution system a product of American foreign policy and American values concerning the 'rule of law' and its enforcement?
      • What was the role of global concern over American unilateralism in the formation of the WTO?
      • What was the main purpose of the WTO in creating 'rules of the road' as to its negotiations and dispute resolution system?
      • What percentage of cases are actually litigated after being filed?
      • What actual sanctions are provided for?
      •  In what sense are sanctions multilateral and not unilateral?
      • What is the nature of the compulsory jurisdiction of the system?
      • What is meant by 'conformity'? Are state action ever judged to be illegal?
      • What is meant by sanctions?
      • What can be said about U.S. - China litigation in the WTO?
      • How aggressive has the U.S. been?
      • What has been the legacy of the Trump actions concerning the WTO and in particular its dispute reolution system?
      • Has China implemented decisions against it in the WTO? Has the U.S. implemented decisions against it?
      • What has been the practice of the Biden administration in filing WTO cases comapared to China, Obama, Bush and Clinton?

       

       


       CLASS 12. Extraterritorial U.S. Law & Global Transactions.

      4.14.21

       

       Carter: 638 - 644 (Bases of Jurisdiction), 650 - 659 (Morrison Case).


       

       

       Restatement: §§414-416.

       

      U.S. v. Alcoa (2d Cir. 1945) (Extraterritoriality and International Antitrust) ('Presumption of Territoriality' and 'Presumption against Extraterritoriality')

        

      Morrison v. Australia (S.Ct. 2010)  (securities fraud).



       


       
      Malawer, "Trade Sanctions." U.S. LAW & GLOBAL TRADE #38-44, 54 (2015).  



       


       
       

      "Piercing the Secrecy of Offshore Tax Havens (Video)."Washington Post (April 6, 2013) (review of massive data).




      Global Manitsky Act (1996) CRS (2020).

                                                

       

       

       Regulating Global Transactions. 

       

       

        Antitrust (price-fixing)   Securities (foreign fraud).   

        Foreign Corruption
       

        Money Laundering

        Trade Sanctions

         Export Controls.

        Global Taxation.

       

       

       
                   Discussion Questions.
       
       
       
      • What is the impact of living in a multijurisdictional world' with 'global cross-border transactions'?
      • What are the five bases of jurisdiction under international law?
      • What is the 'prescriptive basis" for jurisdiction and the relation of the 'effects doctrine' to it?
      • How is this all related to the 'Lotus Case'?
      • How are U.S. terrorism laws related to the 'protective bases of jurisdiction' and how are the related to the 'passive personality basis of jurisdiction?
      • What if a country violates the one of the bases of jurisdiction? What is the implication for domestic law and international law?
      • What is meant by extraterritoriality of U.S. legislation?
      • What is the 'presumption of territoriality'? Presumption against Extraterritoriality?
      • Why are U.S. antitrust laws applied extraterritorially? What is the 'effects principle'?
      • What did the S.Ct. reverse in the Morrisson Case as to Rule 10(B)(5) -- stock fraud? How similar to the Kiobel Case (ATS)?
      • What did the Morrisson Case (Scalia) say about the 'presumption of territoriality' and the 'presumption against extraterritoriality'?
      • What does it mean that international law requires extraterritoriality needs to be reasonable?
      • How are U.S. laws governing foreign government corruption extraterritorial?
      • In what ways are U.S. tax laws extraterritorial?
      • How are parent and subsidiary companies treated as to extraterritoriality?
       

       

       13. State Responsibility to Aliens & International Human Rights Law.

       4.21.21

       

       

       Carter:721 - 734.    Docs.: 373-383.


      "Biden on Human Rights." Financial Times (Feb. 10, 2021). 

       State Responsibility (Older Concept before H. Rt. Law)


       Human Rights & Regional Courts Systems for Human Rights.


       Restatement: §§701-703, 711-713. Carter: 741-742, 747-753, 787-793.

       

      Docs.: 384-405, 446-457, 481-494, 942-974) (Univ. Declaration of Rights, Int'l Convention Civil & Political Rights, Convention Against Torture, European Human Rights Convention [ECHR], International Criminal Court).

       

      ·  U.N. Declaration on Human Rights.

      ·  International Political and Civil Covenants

      ·  Conventions against Torture.

      ·  European Court of Human Rights and European Convention on Human Rights. 

      ·  Rome Statute on International Criminal Court.




       

                          Discussion Questions.
       
       
       
       
      • What does state responsibility to aliens principally refer to?
      • What is the issue concerning 'attribution' and state conduct?
      • What is the nationality of a corporation?
      • How is the Alien Tort Statute (Filartiga and Kiobel cases) relate to the customary international law of human rights?
      • What is the issue concerning state-owned enterprises (SOE)?
      • Are the UN documents on human rights (Univ. Declaration and Political Covenants) self-executing in the U.S. as domestic law? Are they binding as international law? As domestic law in the U.S.?
      • What are common Articles 2 and 3 in the Geneva conventions concerning the law of war?
      • Does the European Court on Human Rights under the European Convention of Human Rights provide for domestic obligations? For whom? What is the 'standing' of individuals to bring actions?
      • What is the European Court of Human Rights? Is it applicable to commercial claims?
      • Why hasn't the U.S. joined the Int'l Criminal Court (war crimes)? Why are countries dropping out of the ICC?
      • What are the various conventions on torture? Are they binding on the U.S.? Are they self-executing in the U.S.?
      • What do you think about a new WTO court for corruption? European Court for Investment?
      • What has been Biden's position on himan rights abroad? Use of sanctions as to Russia, China, Burma?
      • What has Biden done so far as to use of sanctions and international human rights? Russia, China, Burma? 

                 

      CLASS 14. Law of the Sea, International Environmental Law, Use of Force & Biden's Next Four Years (and US- China).

       Law of the Sea Convention and Environmental Treaties (Climate Treaties).

      4.28.21


      Restatement: §§601-604, 501-523/


      Carter: 857 – 867, 879-883, 917-923.Docs.: 541-550, (UNCLOS Convention 1982); 659-663 (Stockholm Declaration (1972) (General Recognition), 664-668 (Rio 1992) (Principles),718-735 (Kyoto 1998) (Commitments).


      "Biden Rejoins Paris Climate Accord." New York Times (Feb. 19, 2021).


      "Canada's Supreme Court, Chevron and Ecuador." American Lawyer (Sept. 4, 2015) (private litigation and environment). 
      Trail Smelter Case (1941 Arbitration, US-Canada).
       
       U.N. Law of the Sea Convention (1982) and Statute of the International Tribunal for  Law of the Sea.  ''South China Sea Arbitration.' (PCIA 7.16.2016).   

       

      ·Stockholm Declaration (1972).

      UNEP.

      · NRDC v. EPA (2006).

      ·  Convention on Climate Change (NY 1992).

      ·  President Obama’s climate policies (Paris Conference 2015). Paris Treaty. Trump's Policies?


                      Discussion Questions

       

      • What is the UN Law of the Sea Convention (1982 / 1994)?
      • What are the dispute resolution provisions of the treaty? Law of the Sea Tribunal as residual recourse?
      • Why hasn't the U.S. ratified it?
      • What does it provide for as to 'free passage' and the breadth of the territorial sea?
      • What is the nature of China's claims in the East China Sea?
      • How are disputes settled under the Law of the Sea Convention?
      • What about the recent litigation by the Philippines against China at the Permanent Court of Arbitration in the Hague?
      • What has been Biden's position on global environment? Paris Climate Accord? Multilateral conferences?
       
       

       
       

       
      • What is the legal obligation of states not to pollute?
      • What is the Stockholm Declaration (1972), Rio (1992) and Kyoto (1998)? Which are General Assembly Resolutions and which are agreements? Which if any are binding?
      • What is the principal obligation being discussed in Paris -- Increasing the commitments of reducing the levels of carbon emissions and making them binding?
      • What have been recent international developments and issues concerning climate change?
      • What is the issue of a formal treaty and international obligations at the the Paris conference (2015)?
      • Why did President Obama consider the use of an executive agreement as opposed to a formal treaty for a proposed Paris Climate agreement?
      • What are the proposals concerning litigating or resolving disputes under these climate agreements if any?
      • What is the litigation brought against Ecuador in Ecuador concerning environmental damage by U.S. oil companies?
       
       

       

      ......  Use of Force – International, Constitutional Law and Statutory Law.

       

       

      International and U.S. Law.

       

      Carter: 944 – 956, 1036 – 1041.

      Docs.: 1-14 (UN Charter)752-758 (War Powers Resolution), 794 - 795 (AUMF).

       

       Malawer. "U.S. Constitution, International Law &Vietnam ." (1969).

       

       

      "Biden's Use of Force." New York Times (March 23, 2021).

      Kaine and McCain Proposal  to Reform the War Powers Resolution

      (2015).

       

      "Congress and the War Against ISIS." New York Times (December 27, 2015);
      " U.S. Offensive Cyberattacks on ISIS." New York Times (April 25, 2016).
      "Is the U.S. War Against ISIS Illegal." New York Times (May 5th, 2016).
       
      "War Powers ,Trump and Syria." New York Times (April 8, 2017).
       
      "War Powers and Congress and Syria." New York Times (Op-Ed) April 8, 2017).


      BIDEN'S NEXT FOUR YEARS -- INTERNATIONLA LAW AND INTERNATIONAL ORGANIZATIONS.



      GUEST SPEAKER -- BART FISHER JD, PhD. (Guest Lecture) ----- "U.S. - China Relations -- Legal , Diplomatic and Institutional ('Decoupling) -- Biden's Challenges."



       

       

       

                              Discussion Questions.

       

       

      • What does the U.N. Charter says about the law of self-defense? How did this change prior law (before 1945)?
      • What are Articles 2(4) and 51 of the UN Charter?
      • What is the concept of 'anticipatory self-defense'?
      • What was the argument of the U.S. concerning Vietnam under the law of war?
      • What is the War Powers Resolution?
      • What does the U.S. Constitution say as to use of force, declaration of war, and self-defense?
      • What is the conflict or debate over the Commander-in-Chief power and the power of Congress to declare war?
      • What has been the history of Presidents Reagan, Bush and Obama under both the Constitution and public international law concerning the use of force?
      • What is the AUMF (Authorization to Use Force 2001, 2002) concerning terrorism and Iraq? What about new legislation concerning Syria and ISIS?
      • What has been Senator Kaine's arguments concerning a new War Powers Resolution and military operations in the Middle East -- Syria and ISIS?
      • Does a cyber attack constitute an 'armed attack'? Does it have to involve actual physical damage, for example, as to critical infrastructure? Is this a violation of national sovereignty? Of the War Powers Resolution / AUMF?
      • What has been the issue of the Biden administration on the use of force, what has he actually done in using force?
      • What seems to be Biden's view of multilateralism as well as unilateral U.S. actions?
      • What is the outlook for U.S. - China relations as to international law, international institutions and diplomacy gemerally?

       

       

                                         

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      Phone:            703.283.9394

      E-mail:            StuartMalawer@msn.com; smalawer@gmu.edu

       

       

                                               POLICY ON PLAGIARISM

       

      The profession of scholarship and the intellectual life of a university as well as the field of public policy inquiry depend fundamentally on a foundation of trust.  Thus any act of plagiarism strikes at the heart of the meaning of the university and the purpose of the School of Public Policy.  It constitutes a serious breach of professional ethics and it is unacceptable.

       

      Plagiarism is the use of another’s words or ideas presented as one’s own.  It includes, among other things, the use of specific words, ideas, or frameworks that are the product of another’s work.  Honesty and thoroughness in citing sources is essential to professional accountability and personal responsibility.  Appropriate citation is necessary so that arguments, evidence, and claims can be critically examined.

       

      Plagiarism is wrong because of the injustice it does to the person whose ideas are stolen.  But it is also wrong because it constitutes lying to one’s professional colleagues.  From a prudential perspective, it is shortsighted and self-defeating, and it can ruin a professional career.

       

      The faculty of the School of Public Policy takes plagiarism seriously and has adopted a zero tolerance policy.  Any plagiarized assignment will receive an automatic grade of “F.”  This may lead to failure for the course, resulting in dismissal from the University.  This dismissal will be noted on the student’s transcript.  For foreign students who are on a university-sponsored visa (eg. F-1, J-1 or J-2), dismissal also results in the revocation of their visa.



      To help enforce the SPP policy on plagiarism, all written work submitted in partial fulfillment of course or degree requirements must be available in electronic form so that it can be compared with electronic databases, as well as submitted to commercial services to which the School subscribes.  Faculty may at any time submit student’s work without prior permission from the student. Individual instructors may require that written work be submitted in electronic as well as printed form.  The SPP policy on plagiarism is supplementary to the George Mason University Honor Code; it is not intended to replace it or substitute for it. 

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                                                                 DISABILITIES

       

      If you are a student with a disability and you need academic accommodations, please see me and contact the Office of Disability Services (ODS) at 993-2474. All academic accommodations must be arranged through the ODS.

       

       

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                                                                            LEARNING OUTCOMES

      Understanding.

      o To understand the development and operation of international legal system.

      o To understand the inter-play between U.S. statutory and Constitutional law and public international law.

      o To understand the adjudication process and application of global rules to specific disputes. This involves the understanding of regional and international court systems.

      o To understand the participation of the United States in the global legal system.

      o To understand the impact of the basic constitutional parameters of the United States in its participation in the global legal system.

      o To understand basic U.S. and international cases concerning both federal and international legal concepts..

      o To understand the dual nature of international agreements as creating domestic and international obligations.

       

      Skills.

      o How to research case decisions of international tribunals.

      o How to analyze case decisions of these systems.

      How to research U.S. cases and international agreements.

      o How to research and assess U.S. executive and congressional actions  in the international legal and political environments. 

       

      Assessment.

       o To analyze and to interpret global  issues from the perspective of the United States and international law in a sensible and realistic perspective focusing on both domestic and international law,  politics and business.

      o To understand the basic legal, political and institutional aspects of global relations and governance and to discuss them in a competent manner.

        o  To propose realistic domestic and international public policy responses to global issues.

       

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      ONLINE STUDENT JOURNAL New Voices in Public Policy: I will consider nominating the very best papers in this course for publication in New Voices in Public Policy. New Voices is a student- and faculty-reviewed journal that shares SPP's finest student work with the rest of the world.

       

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