Maastricht University Faculty of Law
Master: Globalization and Law
Course: Advanced International Law 2005-2006
Level
This is an advanced course that assumes that participants have already passed an
introductory course in public international law. Students that do not meet this
requirement should study an introductory treatise such as Akehurst’s Modern
Introduction to International Law or Martin Dixon’s Textbook on International Law
before the beginning of the course.
Objective
The purpose of the course is to acquire a deeper understanding of the development of
international law against the backdrop of globalization. Its focus is on general
international law rather than on sub-fields that are covered elsewhere in the
curriculum, such as international environmental law, international trade law,
international criminal law, international human rights law, international humanitarian
law and international dispute settlement. Particular emphasis is laid on the impact of
the (real or perceived) decline of the state and the emergence of non-state actors,
including inter-governmental organizations, non-governmental organizations,
multinational enterprises and the individual.
Method of instruction
This is an intensive course covering a lot of ground within a limited amount of time
and requiring a considerable amount of preparation for each session. Every week there
will be both a lecture and a tutorial group meeting. Attendance at both of these is
compulsory. Lectures will employ the socratic method, tutorial groups will employ
the problem-based learning method. Students are expected to prepare a one to two
page paper in advance of each tutorial group meeting and submit it by midnight the
day before the relevant group meeting using the Digital Dropbox in Eleum.
Literature
The textbook employed for this course is Malcolm Shaw, International Law,
Cambridge University Press, 2003 (5th edition). This book should be studied in its
entirety with the exception of the following chapters:
1. The nature and development of international law
6. International protection of human rights;
7. Regional protection of human rights;
10. Air and space law;
11. Law of the sea;
15. International environmental law;
18. Settlement of disputes;
19. Inter-state courts and tribunals;
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21. International humanitarian law.
Students should also have Blackstone’s International Law Documents, Oxford
University Press, 2003 (6th edition) or a similar collection of international legal
documents.
N.B. You should purchase these two books before the beginning of the course
and study the literature listed below under the heading Week 1 before your first
class!
Staff
Instructors: Professor Menno Kamminga (m.kamminga@ir.unimaas.nl) (coordinator)
and Ingrid Westendorp (i.westendorp@ir.unimaas.nl). Secretariat: Peggy van Wersch
(p.vanwersch@sr.unimaas.nl), room 0.108.
Assessment
The exam will consist of essay questions. Blackstone’s International Law Documents
or a similar collection of international legal documents may be consulted at the exam.
Students that have satisfactorily and in due time completed six of the seven weekly
assignments will receive a credit of one point (out of a maximum grade of 10).
Program outline
Week 1: Globalization and international law
Week 2: International law and municipal law
Week 3: States
Week 4: State responsibility
Week 5: International organizations and the individual
Week 6: Multinational enterprises and NGOs
Week 7: Terrorism and the use of force
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Week 1
Globalization and international law
Literature:
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Shaw, Chapter 2: International law today.
Shaw, Chapter 3: Sources.
Schachter, The Decline of the Nation-State and Its Implications for
International Law’, 36 Colum. J. Transnat’l L. (1998) 7-23:
http://www.heinonline.org/HOL/Page?handle=hein.journals/cjtl36&size=2&ro
t=0&collection=fijournals&id=13
Alston, ‘The Myopia of the Handmaidens: International Lawyers and
Globalization’, 8 EJIL (1997) 435-448:
http://www.heinonline.org/HOL/Page?handle=hein.journals/eurint8&size=2&
rot=0&collection=fijournals&id=443
Lecture:
Globalization
Tutorial group:
The impact of globalization on international law
In preparation for the first tutorial group meeting students should use the discussion
forum under POLARIS. A manual on Polaris (both in Dutch and in English) can be
found at: http://www.rechten.unimaas.nl/edit/eleum . Click on Instructies Polaris
(Working with Polaris).
Log in on Polaris and go to the forum ‘Globalization and international law’
where you will find three threads containing three questions: 1. What do you regard
as the main characteristics of globalization? 2. Who has benefited and who has
suffered from globalization? 3. What is the impact of globalization on international
law? This is a virtual group session and all students are expected to participate. The
tutor will check whether everyone has contributed.
Read the contributions of your fellow students carefully and respond to them.
Avoid repetition, but ask critical questions or add information where necessary.
Contributions should not be longer than five lines. The discussion on Polaris must be
concluded at midnight of the day before the first tutorial group meeting. During the
first group session the discussion on these three questions will be continued.
Furthermore, you are requested to submit an individual contribution of at least
one and at most two pages to the digital drop box before midnight on the day before
the first group meeting on the following question: Which changes in international law
are needed, in your view, to correct any negative consequences of globalization?
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Week 2
International law and municipal law
Literature:
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Shaw, Chapter 4: International law and municipal law.
Shaw, Chapter 9: Territory.
Shaw, Chapter 12: Jurisdiction.
Shaw, Chapter 13: Immunities from jurisdiction.
Lecture:
International law and municipal law
Tutorial group:
The Avena case
THE WHITE HOUSE
WASHINGTON
February 28, 2005
MEMORANDUM FOR THE ATTORNEY GENERAL
SUBJECT: Compliance with the Decision of the International Court of Justice
in Avena
The United States is a party to the Vienna Convention on Consular Relations
(the "Convention") and the Convention's Optional Protocol Concerning the
Compulsory Settlement of Disputes (Optional Protocol), which gives the
International Court of Justice (ICJ) jurisdiction to decide disputes concerning
the "interpretation and application" of the Convention.
I have determined, pursuant to the authority vested in me as President by the
Constitution and the laws of the United States of America, that the United
States will discharge its international obligations under the decision of the
International Court of Justice in the Case Concerning Avena and Other
Mexican Nationals (Mexico v. United States of America) (Avena), 2004 ICJ
128 (Mar. 31), by having State courts give effect to the decision in accordance
with general principles of comity in cases filed by the 51 Mexican nationals
addressed in that decision.
[Signed] George W. Bush
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Week 3
States
Literature:
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Shaw, Chapter 5: The subjects of international law.
Shaw, Chapter 8: Recognition.
Shaw, Chapter 17: State succession.
Lecture:
Participants in the international legal system
Tutorial group:
State failure
State collapse may be the ultimate consequence of globalization although in the case
of Somalia its demise may have been caused more by the effects of colonialism.
Somalia is generally considered the quintessential example of a ‘failed’ state. There
has been no government, army, police or justice system since the state collapsed in
1991. Instead, control over Somalian territory has been exercised by competing
warlords. As a consequence, Somalia has long been unable to fulfill its international
obligations. For more than 20 years, for example, Somalia has failed to comply with
its reporting obligations under the UN Convention on the Elimination of Racial
Discrimination. In the absence of any form of government for a long period of time, it
is debatable whether Somalia is still a state. More recently, a Somalian Government in
exile has been established in Nairobi but it is considered too dangerous for the
Government to move to Mogadishu. One of the questions that arises is whether the
new Government can be held responsible for injuries caused in the past or whether it
can rely on some kind of exception in this respect.
For more background on the situation in Somalia consider this report by a BBC
journalist: http://news.bbc.co.uk/1/hi/world/africa/4017147.stm
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Week 4
State responsibility
Literature:
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Shaw, Chapter 14: State responsibility.
Shaw, Chapter 16: The law of treaties.
Lecture:
The system of state responsibility
Tutorial group:
State responsibility for misconduct by non-state actors
As the state declines and various categories of non-state actors emerge, the question
arises whether under either primary or secondary rules of international law a state can
be held responsible for abuses committed by non-state actors.
Contrary to sanctions imposed by the UN Security Council, a company based in
Antwerp buys diamonds from an armed group in an African country. The group
subsequently commits atrocities with the arms bought with the earnings from the sale
of diamonds. Can Belgium or the African country be held responsible for any
misconduct by the company? Does it make a difference whether or not it is a company
owned by the Belgian state?
During a visit to the United Kingdom, the director of the company is arrested and
convicted of sanctions-busting. He serves his sentence in a privatized prison owned by
Wackenhut Corrections Corporation. He wonders whether he can hold the UK
Government responsible and submit a complaint against the UK under the European
Convention on Human Rights if he suffers any human rights abuses in this facility.
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Week 5
International organizations and the individual
Literature:
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Shaw, Chapter 22: The United Nations.
Shaw, Chapter 23: International Institutions.
Report by the UN Secretary-General: In larger freedom: towards development,
security and human rights for all, UN Doc. A/59/2005, chapter V:
Strengthening the United Nations:
http://www.un.org/largerfreedom/contents.htm
Orakhelashvili, ‘The Position of the Individual in International Law’ Cal.
Western Int’l L. J. (2001) 241-276:
http://www.heinonline.org/HOL/Page?handle=hein.journals/calwi31&size=2&
rot=0&collection=fijournals&id=249
Lecture:
UN reform
Tutorial group:
1. Claims against international organizations
UN peacekeepers on duty in Cyprus are accused of sexual abuses against local women
and girls. The victims and their families wonder which remedies they may exercise
and against whom. Or are UN peacekeepers simply above the law?
2. International claims by and against individuals
Under traditional international law the individual lacks the legal standing to act on the
international plane. Although the individual is still far from being able to interact with
states on an equal footing, under modern international law (s)he is increasingly able to
enforce international claims against states. The conditions under which these rights
can be exercised differ widely, however. At the same time, the individual can
increasingly be held accountable by international institutions.
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Week 6
Multinational enterprises and NGOs
Literature:
 Report of the UN High Commissioner on Human Rights on the
responsibilities of transnational corporations and related business
enterprises with regard to human rights, UN Doc. E/CN.4/2005/91:
http://www.ohchr.org/english/bodies/chr/docs/61chr/E.CN.4.2005.91.doc
 Kamminga, ‘The Evolving Status of NGOs under International Law: A
Threat to the Inter-State System?’ in P. Alston (ed.), Non-State Actors and
Human Rights (2005), p. 93-111:
Lecture:
Multinational enterprises and NGOs
Tutorial group:
1. Suing a multinational enterprise
One of the subsidiaries of a multinational enterprise based in Europe is engaged in oil
exploration and exploitation in an African country as part of a joint venture with the
government of that country. The African country’s government is a corrupt military
dictatorship. It violently removes the indigenous people inhabiting the areas the oil
company is planning to explore. An organization representing the indigenous people
wishes to sue the multinational enterprise for damages in the European country where
the company has its headquarters.
2. Legitimacy of NGOs
“The increasing clout of NGOs, respectable and not so respectable, raises an
important question: who elected Oxfam, or, for that matter, the League for a
Revolutionary Communist International? Bodies such as these are, to varying degrees,
extorting admissions of fault from law-abiding companies and changes in policy from
democratically elected governments. They may claim to be acting in the interests of
the people – but then so do the objects of their criticism, governments and the
despised international institutions. In the West, governments and their agencies are, in
the end, accountable to voters. Who holds the activists accountable?”
The Economist, 23 September 2000.
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Week 7
Terrorism and the use of force
Literature:
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Shaw, Chapter 20: International law and the use of force by states.
Report by the UN Secretary-General: In larger freedom: towards development,
security and human rights for all, UN Doc. A/59/2005, Chapter III: Freedom
from fear: http://www.un.org/largerfreedom/contents.htm
Lecture:
The use of force
Tutorial group:
Responding to the threat of terrorism
At his daily intelligence briefing the President of the United States is informed by the
Director of the CIA that the American Liberation Front (ALF), a previously unknown
group, is planning simultaneous armed attacks on population centers throughout the
United States. According to one intelligence source the attacks are imminent,
according to another the attacks are merely in an advanced state of preparation. The
ALF is suspected of having its base in a small African country but it not clear whether
the government of that country is actively supporting the ALF or merely tolerating it.
The President orders the White House legal counsel to immediately prepare a paper
on the options that are available to him.