SYLLABUS
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NUCLEAR WEAPONS & INTERNATIONALLAW
Professor Charles J. Moxley, Jr.
Fordham University School of Law
Fall 2014
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 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 associatedwith the nuclear weapons regime. The course will
encompass contemporary proliferation issues, including as to Iran and North
Korea. This will be apaper 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.
Prof. |
Day/Time |
Room |
Moxley |
Monday / 6:00 PM to 7:50 PM |
4-06 |
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 ÐÐ 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 ÓdefenseÓ 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 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 TopicÑand are available here.
Class 1 (8/25/14):
á Focus: Consideration of the strategic role of nuclear weapons; general introduction tolaw 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 Hans M. Kristensen, ÒStatus of World Nuclear Forces, ÒFederation of American Scientists (April 2014), available at http://fas.org/issues/nuclear-weapons/status-world-nuclear-forces/ (skim)
á George P. Schultz, William J. Perry, Henry Kissinger and Sam Nunn, ÒNext Steps in Reducing Nuclear Risks: The Pace of Nonproliferation Work Today DoesnÕt Match the Urgency of the Threat,,Ó Wall Street Journal op ed piece, March 5, 2013, available at http://online.wsj.com/news/articles/SB10001424127887324338604578325912939001772
á
Michaela Dodge, ÒU.S. Nuclear Weapons Policy: After Ukraine,
Time to Reassess Strategic PostureÓ (Heritage Foundation Issue
Brief #4183 on Arms Control and Nonproliferation,
March 27, 2014), available at http://www.heritage.org/research/reports/2014/03/us-nuclear-weapons-policy-after-ukraine-time-to-reassess-strategic-posture
á 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).
á United Nations web materials on nuclear weapons, available at http://www.un.org/disarmament/WMD/Nuclear/ (skim).
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 (skim)
á Optional: Images and Videos relating to Nuclear Weapons Prepared by Fordham StudentZachary Novetsky: http://www.nuclearweaponslaw.com/NuclearWeapons Slideshow_Moxley.pdf
Class 2 (9/08/14):
á Focus: 2010 U.S. Nuclear Policy Review and Related Strategy
á Readings
á Vancouver Declaration, February 11, 2011, ÒLawÕs Imperative for the Urgent Achievement of a Nuclear-Weapon-Free World,Ó available at http://www.thesimonsfoundation.ca/sites/all/files/Vancouver%20Declaration_3.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
á Department of Defense, ÒReport on Nuclear Employment Strategy of the United StatesÓ (2013), available at http://www.defense.gov/pubs/reporttoCongressonUSNuclearEmploymentStrategy_Section491.pdf
Class 3 (9/15/14):
á Baker Spring, ÒDisarm Now, Ask Questions
Later: ObamaÕs Nuclear Weapons PolicyÓ (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
á
Alan Robock
and Owen Brian Toon, ÒSelf-Assured Destruction: The Climate Impacts of Nuclear
War,Ó Bulletin of the Atomic Scientists (2012), PDF to be circulated
á
Chatham
House Report, ÒToo Close for Comfort: Cases of Near Nuclear Use and Options for
PolicyÓ (2014), PDF to be circulated (skim)
á
Optional:
information about pending nuclear-weapons related litigation: http://lcnp.org/RMI/index.html
Class 4 (9/22/14)
á Focus: U.S.nuclear policy; rules of the law of armed conflict applicable to the lawfulnessof the use and threat of use of nuclear weapons, as articulated by the UnitedStates
á Readings
á 15-74 and related Supplemental Materials (assignments, unless otherwise noted, are to Moxley, Nuclear Weapons and International Law in the Post Cold War World).
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 (9/29/14):
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 Belfer Center, ÒTranscending Mutual Deterrence in the U.S.-Russian RelationshipÓ (2013), available at http://belfercenter.ksg.harvard.edu/files/MAD%20English.pdf
Class 6 (10/6/14):
á Focus: Rules of the law of armed conflict applicable to the lawfulness of the use and threat ofuse of nuclear weapons, as applied by the United States; the ICJ decision inthe Nuclear Weapons Advisory Case.
á Readings
á 120-153; 155-174 and related Supplemental Materials
á The ICJÕs 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 (10/20/14):
á Focus: The ICJ decision in the Nuclear Weapons Advisory Case
Readings
á 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 (10/27/14):
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 alsoavailable 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 (11/3/14):
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 (11/10/14):
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 (11/17/14):
á Focus: Generally accepted principles of law applicable to the issue of the lawfulness of the useor 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 (11/24/14):
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; risksof chemical and biological weapons; student presentations
á Readings
á 515-553 and related Supplemental Materials
á 585-632 and related Supplemental Materials
Class 13 (12/1/14):
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