The following are the “official” discussion questions for this course. Students should feel free to offer their own replies to these questions via the “Comments” function below.

Classes 1-2: 10 & 12 February

1. How would you define the term “international law”?
2. A Cross-Sectional Comparison. Scholars in a variety of fields examine IL, but they often employ different approaches to and develop different perspective on the same substantive issues. Compare and contrast these differences.
3. Is “international law” an oxymoron?
4. What are the sources of international law?
5. Do the sources of IL affect their enforceability, applicability, and/or violability?

Class 3: 17 February

In this class, we consider several perspectives on a range of similar questions. As you read, think carefully about the questions and the opinions of our several commentators (the Athenians, the Melians, Grotius, and Hobbes).

1. What do the various commentators suggest is the relationship between power and morality, between “might” and “right”?
2. What do the various commentators suggest is the relationship between morality and self-interest? Is the “observation of right” “folly”?
3. What do the various commentators suggest is the relationship between fortune in war and the righteousness of a cause?
4. Several of these commentators suggest that (what we call) international regimes (including international law) might be developed to help govern international relations. According to them, do such regimes serve the interest of the powerful or the weak?
5. According to Grotius, what are the bases of natural law? What sources does he privilege in his distillation of its precepts?
6. According to Hobbes, is there justice in the state of nature?
7. According to Hobbes, what is our “natural right”? What is “natural law”? How does Hobbes’ understanding of these terms compare to Grotius’ rendering of the “fountain of right”?
8. Hobbes suggests that an individual cannot renounce his or her right to life. If that is the case, how can the Leviathan perform its original task?
9. How and why do individuals create a commonwealth in Hobbes’ account?
10. Inferring from the passages we read, what does Hobbes make of the notion of “international law”?

Class 4: 19 February

In this class, we consider the “law” part of “international law.” Our goal is to gain a richer perspective on the different ways in which lawyers, judges, and legal scholars have understood the sources, nature, and workings of the law.

1. What does Holmes think is the relationship between morality and law? How does his view compare with that of the perspectives we considered on Tuesday? As a positive matter, is Holmes right in his depiction? Do you agree with him, from a normative standpoint?
2. According to Holmes, “what are the forces which determine [the law’s] content and its growth”? Do you agree with this perspective?
3. Holmes warns us to “beware of the pitfall of antiquarianism.” Are there any good reasons to resist Holmes’ tendency to remake our laws based on our assessment of their expected consequences?
4. Holmes suggests “As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics.” Given your interest in international law, doesn’t this suggestion make you want to take International Political Economy? (I’ll be offering it again next fall!)
5. What does Kennedy mean by the formulations “the abuse of deduction” and “the fantasy of gaplessness in legal discourse”?
6. What does Kennedy see as the defining features of the two sides in the ongoing debate about legal formalism? On which side would you place OW Holmes, Jr? On which side would you place Justice Scalia? On which side would you place yourself?
7. What does Scalia mean by the “general rule of law” and “personal discretion to do justice”?
8. What are the implications for adopting one approach to law versus the other for how we understand, shape, and practice international law?
9. How well do these two formulations map onto the two sides of the debate elucidated by Kennedy?
10. What is the difference, in Scalia’s account, between questions of “law” and questions of “fact”?

Class 5: 24 February

1. What did Carr think was the appropriate relationship between morality and foreign policy?
2. Carr’s book included the subtitle “An Introduction to the Study of International Relations.” What role, if any, do you think International Law would play in that mode of studying IR?
3. What does Morgenthau mean by “positivism” and “functionalism”? What is the relationship between the two?
4. On what grounds does Kissinger stake his resistance to “universal jurisdiction”?

Class 6: 26 February

1. On what grounds does Roth advocate “universal jurisdiction”?
2. What does Abbot mean by “the concept of legalization”? How does he see law playing out in international politics? Do you think his perspective differs from that which you would expect to see given by a lawyer?
3. Why do Goldstein & Martin suggest that legalization limits the progress of trade liberalization?
4. If Goldstein & Martin are correct, what might be the trade-offs of limiting the growth of international law in the realm of international economics?
5. If there is no sovereign to enforce contracts, how do international treaties constrain states?
6. What are the differences and similarities in the perspectives of political scientists and lawyers in their attempts to consider international law? Do they ask the same questions? If so, do they arrive at the same answers?

Class 7: Tuesday, 3 March

1. What does Ikenberry think about the nature of the distinction between domestic and international politics?
2. Do you agree with Ikenberry’s characterization? If Ikenberry were right, how might that affect our understanding of the relationship between domestic and international law?
3. Which of our two types of “logics” of behavior does Krasner favor?
4. What does Krasner mean by “Westphalian” and “interdependence” sovereignty? What does he mean by “legal” and “domestic sovereignty”? Which do you think matters most in shaping international relations? (This question has been updated to reflect an earlier omission.)
5. What does Krasner think is the role of international regimes, including international law? What governs their level of efficacy?

Class 8: Thursday, 5 March

1. What are the different ways by which a state may lay claim to territory? How ought conflicting claims be decided?
2. Describe the different “principles” by which states may claim jurisdiction. Which principle do you think ought to be given deference when they conflict?
3. In light of our earlier reading of Kissinger & Roth, do you think the Pinochet case would have been handled better if the proceedings had occurred in the ICC?

Class 9: Tuesday, 10 March

1. Nations have existed for millennia without international courts to sort out their disputes. Why do we need them now? How did they sort out their disputes without them?
2. What are the major features of the ICJ? What is the relationship between the ICJ and the UN?
3. What is the extent of the ICJ’s jurisdiction? What are the extent of its powers?
4. How does the structure of the ICJ compare with the structure of other major courts, like the Supreme Court of the United States? Why do you think this model was adopted?

Class 10: Thursday, 12 March

1. What are the major features of the ICC? What is the relationship between the ICC and the UN?
2. What is the extent of the ICC’s jurisdiction? What are the extent of its powers?
3. How does the structure of the ICC compare with the structure of the ICJ? How does it compare with the structure of other major courts, like the Supreme Court of the United States?
4. Why, according to Forsythe, has the US refused to join the ICC? Why do you think the US has refused to join?

Class 11: Tuesday, 17 March

1. How does the legal body of the WTO (the DSB) compare to other international legal bodies we have considered (the ICJ, the ICC, &c)?
2. Powerful states like the United States have often modified their behavior in response to the legal proceedings of the DSB. How would EH Carr explain this? How might OW Holmes, Jr?
3. According to Barton, et al, what is the relationship between power and law within the WTO?

Class 12: Thursday, 19 March

1. Is the EU best understood as an international organization or as an burgeoning nation-state? What are the implications of the answer to that question?
2. How does the European Court of Justice compare to the other international legal bodies we have considered? How does it compare to the domestic legal systems with which you are most familiar?
3. Which variables best explain European integration: political, economic, social, or ideological?

Class 13: Tuesday, 31 March

1. What is a “treaty”? How do states ensure that their treaty partners will abide by the terms of the treaty? What are the punishment mechanisms for the violation of treaties?
2. What is a “reservation”? Why do you think the Vienna Convention on Treaties allows for reservations?
3. Can we be sure that treaties constrain? Isn’t it possible that there is a selection effect–that states only sign treaties they intend to follow and, thus, that treaties themselves do not alter behavior?

Class 14: Thursday, 2 April

1. What is the law of the sea? Why can’t states claim ownership over portions of the high seas in the saw ways that they can over portions of unoccupied territory?
2. What were the arguments made by John Selden and Hugo Grotius? What was the source of their disagreement?
3. We have read some Grotius before. Compare and contrast the perspective Grotius gave in On the Law of War and Peace with the account he gave in Mare Liberum. Do they share the same assumptions? How are they different?

Class 15: Tuesday, 7 April

1. What is the role of international law in protecting the environment? If states have always recognized the dangers of unregulated activity on the environment (e.g. overfishing) why is international environmental law so comparatively young?
2. Some have argued that the best way to protect the environment is to establish property rights over the “commons.” This notion underpins the “cap and trade” system. In that sense, international environmental law looks more like the law of the sea than protection of human rights. Do you think tat is the best legal analogy?
3. Why do you think the US has resisted the Kyoto Protocol? Do you think this has been wise?

Class 16: Thursday, 9 April

1. What is the significance of “declaring” rights? Why have some hesitated to establish written lists of these rights?
2. What have been the most significant innovations in our understanding of “human rights” over the last several centuries?
3. Given conflicting views on issues like the role of women and children in society, the rights of the accused, and the optimal level of the freedom of expression, can we really say that there are “universal” rights? If so, what are they? If not, how should we go about determining which rights are universal and how we ought to secure them?

Class 17: Tuesday, 14 April

1. What are the similarities and differences between the international and regional systems of human rights (in terms of conceptions of human rights)? What are the similarities and differences in terms of implementation and protection of human rights?
2. What are the differences between the various “regional” perspectives on human rights?
3. (Reconsider Question 3 from Thursday, 9 April.)

Class 18: Thursday, 16 April

1. How has the legal concept of “self-defense” evolved over time? What role do you think the Second World War played in inspiring some of these changes?
2. Does the existence of nuclear weapons change our understanding of “self-defense”? How does international law treat threats to use nuclear weapons?
3. Do you think the United States was justified in its involvement in Nicaragua?
4. When two states are at war, does it make sense to talk about legal restrictions on the use of force? Isn’t war the antithesis of law?
5. What were the legal outcomes in the Erdemovic and Kejelijeli cases? How were these outcomes shaped by power versus law?

Class 19: Tuesday, 21 April

1. According to Epps, on what grounds is intervention legally justified? What about the case of humanitarian intervention?
2. Rogers agrees with Thomas Franck’s characterization of the Kosovo operation, in which “the unlawfulness of the act was mitigated, to the point of exoneration, in the circumstances in which it occurred.” What does this say about the relationship between law and morality? Do you agree or disagree with Rogers and Franck? If you agree, what do you think are the conditions that justify violating international law?
3. What do Evans and Sahnoun mean by “the responsibility to protect”? What problems might there be in determining how this responsibility will be shared?

Class 20: Thursday, 23 April

1. What are the potential dangers of fighting for more than a country’s own defense? Is doing so legal?
2. What did President Bush see as the relationship between American interests and American principles? If one were to assume that the former followed the latter, does that make him a Grotian?
3. Given his characterization of the French campaign, do you think that Forsythe would agree that US interests will suffer if we compromise on our principles? Do you President Bush would agree that we did compromise on our principles?
4. In the Second World War, Hitler and Stalin continually raised the stakes of brutality in a vicious circle. Does this lend credence to Forsythe’s framework (since Hitler’s brutality backfired) or does it undermine it (since Stalin’s brutality enjoyed success)? Do you think the Athenians hastened their decline by massacring the Melians?
5. According to the Bush Administration, why wouldn’t the Supreme Court have jurisdication in Hamdan v. Rusmfield? On what grounds did the Court decide otherwise?
6. On what grounds did the Court rule that the UCMJ and the Geneva Conventions apply?

Classes 21-24

• (Nuremberg Trial Simulation)