INTERNATIONAL LAW, NATIONAL SECURITY, AND HUMAN RIGHTS
PROFESSOR REGAN
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
I. BASIC FOUNDATIONS
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,
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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)
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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)
II. INTERNATIONAL HUMAN RIGHTS LAW
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
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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)
III. INTERNATIONAL HUMANITARIAN LAW
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
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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. 1517, 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
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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)
IV. COUNTER-TERRORISM
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
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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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