NUCLEAR WEAPONS & INTERNATIONAL LAW

 

Professor Charles J. Moxley, Jr.

Fordham University School of Law

Fall 2013

 

          This seminar will address issues as to the lawfulness or not under international law of the use and 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 States’ position as to the application of such rules to nuclear weapons; the Obama Administration’s 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 associated with the nuclear weapons regime. The course will encompass contemporary proliferation issues, including as to Iran and North Korea. 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.

Credits: 2

 

 

 

 

         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 issues of the lawfulness or not of the use and 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 will start the presentations in approximately the seventh class, although the papers need not be turned in until the end of the examination period. 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. This applies to papers generally and to those submitted for writing credit.

 

          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 seventh 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 students’ 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 Assignments

 

Class 1 (8/26/13):

·      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

·      Readings

·      Federation of American Scientists, “Status of World Nuclear Forces,” available at http://www.fas.org/programs/ssp/nukes/nuclearweapons/nukestatus.html (skim).

·      Swedish International Physicians, materials on nuclear weapons, available at http://www.slmk.org/larom/wordpress/en/learn-about-nuclear-weapons/ (these materials, through their various links, provide a fairly comprehensive introduction into the nuclear weapons area (skim).

·      United Nations web materials on nuclear weapons, available at http://www.un.org/disarmament/WMD/Nuclear/ (skim).

·      Reaching Critical Will, “Unspeakable Suffering – the humanitarian impact of nuclear weapons,” available at http://www.reachingcriticalwill.org/images/documents/Publications/Unspeakable/Unspeakable.pdf (skim).

·      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 (skim).

·      Optional: Images and Videos relating to Nuclear Weapons Prepared by Fordham Student Zachary Novetsky: http://www.nuclearweaponslaw.com/Nuclear Weapons Slideshow_Moxley.pdf

 

Class 2 (9/09/13):

·      Focus: 2010 U.S. Nuclear Policy Review

·      Readings

·      Vancouver Declaration, February 11, 2011, Law’s Imperative for the Urgent Achievement of a Nuclear-Weapon-Free World, available at http://www.lcnp.org/wcourt/Feb2011VancouverConference/vancouverdeclaration.pdf.

·      Department of Defense, “Nuclear Posture Review Report,” April 2010, available at http://www.defense.gov/npr/docs/2010%20nuclear%20posture%20review%20report.pdf

 

Class 3 (9/16/13):

• Focus: U.S. nuclear policy; Continue consideration of the facts as to nuclear weapons and nuclear weapons policy; detailed discussion of the topics for student papers (set forth below) to refine them, put them in context, evaluate their significance, and match up students and topics (Students should come prepared with their top two or three preferences as to a topic to pursue)⁴
• Readings:

·      The White House, “FACT SHEET: Nuclear Weapons Employment Strategy of the United States,” June 19, 2013, available at http://www.whitehouse.gov/the-press-office/2013/06/19/fact-sheet-nuclear-weapons-employment-strategy-united-states.

·      Baker Spring, “Disarm Now, Ask Questions Later: Obama’s Nuclear Weapons Policy” (The Heritage Foundation, Backgrounder, July 11, 2013), available at http://www.heritage.org/research/reports/2013/07/disarm-now-ask-questions-later-obamas-nuclear-weapons-policy.

 

Class 4 (9/23/13)

·      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

·      Readings

·      15-74 and related Supplemental Materials (assignments, unless otherwise noted, are to Moxley, Nuclear Weapons and International Law in the Post Cold War World).

·      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 (9/30/13):

·      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

·      Readings

·      74-120 and related Supplemental Materials

·      Michelle Cann, Kelsey Davenport and Margaret Balza, The Nuclear Security Summit: Assessment of National Commitments,” Updated and Revised March 20, 2012, available at http://www.armscontrol.org/files/ACA_NSS_Report_2012.pdf.

 

Class 6 (10/7/13):

·      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.

·      Readings

·      120-153; 155-174 and related Supplemental Materials

·      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).

 

Class 7 (10/15/13):

·      Focus: The ICJ decision in the Nuclear Weapons Advisory Case

·      Readings

·      174-208 and related Supplemental Materials

·      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 (10/21/13):

·      Focus: the ICJ decision in the Nuclear Weapons Advisory Case; student presentations

·      Readings

·      208-250 and related Supplemental Materials

·      ICJ decision: the separate opinions of various Judges:

·      dissenting opinion of Vice-President Schwebel, 35 I.L.M. 836,

·      dissenting opinion of Judge Higgens, 35 I.L.M. 934, and

·      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 (10/28/13):

·      Focus: the ICJ decision in the Nuclear Weapons Advisory Case; student presentations

·      Readings

·      ICJ decision: the separate opinions of various Judges:

·      individual opinion of Judge Guillaume, 35 I.L.M. 1351,

·      declaration of President Bedjaoui, 35 I.L.M. 1345,

·      declaration Judge Herczegh, 35 I.L.M. 1348,

·      dissenting opinion of Judge Shahabudeen, 35 I.L.M. 861,

·      declaration of Judge Shi, 35 I.L.M. 832,

·      separate opinion of Judge Fleischhauer, 35 I.L.M. 834,

·      declaration of Judge Vereshchetin, 35 I.L.M. 833,

·      declaration of Judge Bravo, 35 I.L.M. 1349, and

·      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 (11/04/13):

·      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

·      Readings

·      251-311 and related Supplemental Materials

·      447-63 and related Supplemental Materials

 

Class 11 (11/11/13):

·      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

·      Readings

·      313-373 and related Supplemental Materials

·      465-81 and related Supplemental Materials

 

Class 12 (11/18/13):

·      Focus: Risk factors inherent in the policy of deterrence; risks of the limited use of nuclear weapons; risks of the United States’ operational nuclear policy; risks of chemical and biological weapons; student presentations

·      Readings

·      515-553 and related Supplemental Materials

·      585-632 and related Supplemental Materials

 

Class 13 (11/25/13):

·      Focus: Technical capabilities of the United States’ 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

·      Readings

·      633-708 and related Supplemental Materials

·      ICJ decision: the dissenting opinion of ICJ Judge Oda, 35 I.L.M. at 843