|
SYLLABUS |
NUCLEAR WEAPONS & INTERNATIONAL
LAW
Professor Charles J. Moxley, Jr.
Fordham University School of Law
Fall 2011
This seminar will address issues as to the lawfulness under international law
of the use or threat of use of nuclear weapons. The course will focus upon such
matters as the following: applicable rules of international law, as articulated
by the United States; the United StatesÕ position as to the application of such
rules to nuclear weapons; the Obama AdministrationÕs Nuclear Posture Review and
other changes to U.S. nuclear policy and practice; the 1996 advisory decision
of the International Court of Justice on the Legality of the Threat or Use of
Nuclear Weapons; relevant judicial decisions subsequent to the ICJ decision;
and generally accepted principles of international law applicable to the
analysis. The course will also focus upon the facts that are central to the
legal analysis, including the characteristics and effects of nuclear weapons,
U.S. policy as to the circumstances in which it might use nuclear weapons, the
theory and implications of nuclear deterrence, and identifiable risk factors as
to the potential effects of the use of nuclear weapons. The course will encompass contemporary
proliferation issues, including as to North Korea and Iran. This will be a paper course and
students will be required to present their papers in class. The papers may be
used to satisfy the writing requirement. The primary text will be Charles J.
Moxley, Jr., Nuclear Weapons and International Law in the Post Cold War
World (Austin & Winfield, University Press of America, 2000) and
related Supplemental Materials.
Students will be provided with electronic copies of the portions of the
book we will be covering.
|
Prof. |
Day/Time
|
Room |
Moxley
|
Monday / 6:00
PM to 7:50 PM |
215 |
This
Syllabus may be found at nuclearweaponslaw.com.
Following are the class assignments. I have tried to balance the legal and
factual materials relating to the issue of the lawfulness of the use or threat
of use of nuclear weapons, so that, when we get to the point of applying the
law to the facts, we will have covered both elements.
This will very much be a discussion course. Students will be expected to
participate actively and should bring the assigned readings to class.
Suggested paper topics are
contained in Syllabus and Related Materials, available at www.nuclearweaponslaw.com.
Students will be expected to present their papers orally to the class in
presentations of approximately twenty minutes and to answer questions from the
professor and other students and participate in discussion of their topics for
another approximately twenty minutes. We start the presentations in
approximately the eighth class, although the papers need not be turned in until
the thirteenth class. Students are expected to circulate outlines or drafts of
their papers a week in advance of their oral presentation to facilitate
discussion of the matters presented. Such outlines/drafts will not be graded
and may be in rough form, particularly for students presenting early in the
course.
In
writing their papers, students are expected to take the analysis to the next
step. The objective is not to
write up the information and analysis set forth in the text and assigned
readings, but rather to assimilate such materials, identify the open
interesting issues –– and address them.
Papers should be approximately twenty-five and no more than forty pages.
Grading will be as follows: class participation (30%); presentation and
"defense" of the paper (20%); and the paper (50%). Students may
contribute to their class participation grade by serving as a discussion leader
with respect to assigned readings or by researching discrete issues that arise
in class discussions.
Starting with approximately the eighth class we will primarily be doing student
presentations of papers and discussion of the presentations. However, the
substantive readings will continue. Students will be expected to draw upon the
continued readings both in their papers and in their discussion of other
studentsÕ papers.
Please
note that legal analysis should make up at least half of every paper and
related presentation. A paper may concentrate on one or more legal issues of
interest, but should provide at least an overview of the universe of legal
issues that may potentially be applicable to the particular topic. As always in
legal analysis, issue recognition is at the heart of the matter.
In
light of the nature of modern communication in the courtroom and elsewhere,
students are encouraged in presenting their papers to use computer visuals and
the like.
The
Supplemental Materials (supplementing the text) appear in two Volumes:
Volume
I: Supplemental Materials
Organized by Manual or Other Source;
and
Volume
II: Supplemental Materials
Organized by Topic—and
are available here.
Class 1
(8/29/11):
á
Focus:
Consideration of the strategic role of nuclear weapons; general introduction to
law and facts relevant to the questions of whether the use and threat of use of nuclear weapons are
lawful under the law of armed conflict
á
Readings
á
1-11
(Read), 405-26 (Skim)
(assignments, unless otherwise noted, are to Moxley, Nuclear Weapons and
International Law in the Post Cold War World) These readings are available here: http://www.nuclearweaponslaw.com/Moxley
Book pp 1-11 and 405-426.pdf.
á
Status
of World Nuclear Forces, Federation of American Scientists, available at http://www.fas.org/programs/ssp/nukes/nuclearweapons/nukestatus.html (Skim).
á
Baker
Spring, Nuclear Weapons Modernization Priorities after New START,
backgrounder #2573 (June 27, 2011), available at http://www.heritage.org/research/reports/2011/06/nuclear-weapons-modernization-priorities-after-new-start.
á
James M.
Acton, Getting STARTed:
Short-Term Steps to Advance the Long-Term Goal of Deep Nuclear Reductions,
Carnegie Endowment for International Peace (July 7, 2011), available at http://carnegieendowment.org/files/Getting_STARTed1.pdf.
á
Testimony
of Mr. Takashi Hiraoka, Mayor of Hiroshima, and Mr. Iccho Itoh, Mayor of
Nagasaki, before the International Court of Justice, 7 November 1995 (22-39),
available at http://www.nuclearweaponslaw.com/Hiroshima_Nagasaki.doc.
Class 2
(9/12/11):
á
Focus:
2010 U.S. Nuclear Policy Review
á
Readings
á
Vancouver
Declaration, February 11, 2011, LawÕs Imperative for the Urgent Achievement
of a Nuclear-Weapon-Free World, available at http://www.lcnp.org/wcourt/Feb2011VancouverConference/vancouverdeclaration.pdf.
á
Department
of Defense, ÒNuclear Posture Review Report,Ó April 2010, available at http://www.defense.gov/npr/docs/2010%20nuclear%20posture%20review%20report.pdf
Class 3
(9/19/11):
Class 4
(9/26/11)
á
Focus:
U.S. nuclear policy; rules of the law of armed conflict applicable to the
lawfulness of the use and threat of use of nuclear weapons, as articulated by
the United States
á
Readings
á
15-74 and
related Supplemental Materials
á
Testimony
of Ms. Lijon Eknilang, Council Member of Rongelap, before the International
Court of Justice, 14 November 1995 (24-28), available at http://www.nuclearweaponslaw.com/Rongelap.doc.
Class 5
(10/3/11):
á
Focus:
Rules of the law of armed conflict applicable to the lawfulness of the use and
threat of use of nuclear weapons, as articulated and applied by the United
States
á
Readings
á
74-120 and
related Supplemental Materials
á
Ivo Daalder
and Jan Lodal, The Logic of Zero: Toward a World Without Nuclear Weapons,
87 Foreign Affairs 80-95 (November/December 2008), available at http://www.brookings.edu/~/media/Files/rc/articles/2008/11_nuclear_weapons_daalder/11_nuclear_weapons_daalder.pdf.
Class 6
(10/11/11):
á
Focus:
Rules of the law of armed conflict applicable to the lawfulness of the use and
threat of use of nuclear weapons, as applied by the United States; the ICJ
decision in the Nuclear Weapons Advisory Case.
á
Readings
á
120-153;
155-174 and related Supplemental Materials
á
The ICJ's
decision in the Nuclear Weapons Advisory Case, available in Lexis at 35 I.L.M.
809, 809-832 (http://www.icj-cij.org/docket/files/95/7495.pdf. (We will start discussing the ICJ
decision in Class 6).
Class 7
(10/17/11):
á
Focus:
The ICJ decision in the Nuclear Weapons Advisory Case
á
Readings
á
174-208 and
related Supplemental Materials
á
ICJ
Decision: Dissenting opinion of Judge Weeramantry, 35 I.L.M. 880, in the
Nuclear Weapons Advisory Case (This cite works in Lexis. Otherwise, try from http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4)
Class 8
(10/24/11):
á
Focus:
the ICJ decision in the Nuclear Weapons Advisory Case; student presentations
á
Readings
á
208-250 and
related Supplemental Materials
á
ICJ
decision: the separate opinions of various Judges:
á
dissenting
opinion of Vice-President Schwebel, 35 I.L.M. 836,
á
dissenting
opinion of Judge Higgens, 35 I.L.M. 934, and
á
dissenting
opinion of Judge Koroma, 35 I.L.M. 925. (These cites work in Lexis. The
opinions are also available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4, although some there are in French
only.)
Class 9
(10/31/11):
á
Focus:
the ICJ decision in the Nuclear Weapons Advisory Case; student presentations
á
Readings
á
ICJ
decision: the separate opinions of various Judges:
á
individual
opinion of Judge Guillaume, 35 I.L.M. 1351,
á
declaration
of President Bedjaoui, 35 I.L.M. 1345,
á
declaration
Judge Herczegh, 35 I.L.M. 1348,
á
dissenting
opinion of Judge Shahabudeen, 35 I.L.M. 861,
á
declaration
of Judge Shi, 35 I.L.M. 832,
á
separate
opinion of Judge Fleischhauer, 35 I.L.M. 834,
á
declaration
of Judge Vereshchetin, 35 I.L.M. 833,
á
declaration
of Judge Bravo, 35 I.L.M. 1349, and
á
individual
opinion of Judge Ranjeva, 35 I.L.M. 1354.
These
cites work in Lexis. The opinions are also available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4, although some there are in French only.
Class 10
(11/7/11):
á
Focus:
Generally accepted principles of law applicable to the issue of the lawfulness
of the use or threat of use of nuclear weapons; student presentations
á
Readings
á
251-311 and
related Supplemental Materials
á
447-63 and
related Supplemental Materials
Class 11
(11/14/11):
á
Focus:
Generally accepted principles of law applicable to the issue of the lawfulness
of the use or threat of use of nuclear weapons; risk factors inherent in U.S.
operational policy as to nuclear weapons in the post World War II era; student
presentations
á
Readings
á
313-373 and
related Supplemental Materials
á
465-81 and
related Supplemental Materials
Class 12
(11/21/11):
á
Focus:
Risk factors inherent in the policy of deterrence; risks of the limited use of
nuclear weapons; risks of the United StatesÕ operational nuclear policy; risks
of chemical and biological weapons; student presentations
á
Readings
á
515-553 and
related Supplemental Materials
á
585-632 and
related Supplemental Materials
Class 13
(11/28/11):
á
Focus:
Technical capabilities of the United StatesÕ modern high tech conventional
weapons; unlawfulness of the use of nuclear weapons under rules of
international law recognized by the United States; additional ICJ individual
opinion; student presentations
á
Readings
á
633-708 and
related Supplemental Materials
á
ICJ
decision: the dissenting opinion of ICJ Judge Oda, 35 I.L.M. at 843