|
Course Description, Syllabus,
Topics for Papers, and Reference Sources |
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.
|
Prof. |
Day/Time
|
Room |
Moxley
|
Monday / 6:00
PM to 7:50 PM |
215 |
Sections: Syllabus, Topics for Papers,
Reference Sources. 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.
Set forth below are various topics for papers.1 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)
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.
á
Reference
Materials:2
á
A Global
Law to Ban Nuclear Weapons, Middle Powers Initiative Briefing Papers (June
2011), available at http://www.middlepowers.org/pubs/Global_Law.pdf.
á
Steven
Pifer, NATO, Nuclear Weapons and Arms Control, Brookings Arms Control
Series, Paper 7 (July 2011), available at http://www.brookings.edu/~/media/Files/rc/papers/2011/0719_arms_control_pifer/0719_arms_control_pifer.pdf.
á
Transcript
of Proceedings, The Brookings Institution, The Trilateral Process: Washington, Kiev, Moscow, and the Fate
of Nuclear Weapons in Ukraine, Washington, DC, Monday, May 9, 2011,
available at http://www.brookings.edu/~/media/Files/events/2011/0509_trilateral_ukraine/20110509_trilateral_transcript.pdf.
á
Steven
Pifer, Aspen Institute Congressional Program Managing The U.S.-Russian
Nuclear Relationship (April 2011), available at http://www.brookings.edu/~/media/Files/rc/papers/2011/04_arms_control_pifer/04_arms_control_pifer.pdf.
á
Steven
Pifer, The United States, NATOÕs Strategic Concept, and Nuclear Issues,
Nuclear policy Paper No. 6 (April 2011), available at http://tacticalnuclearweapons.ifsh.de/pdf/Nuclear_Policy_Paper_No6.pdf.
á
Federation
of American Scientists, United States Nuclear Forces, Weapons of Mass
Destruction, WMD Around the World, available at http://www.fas.org/nuke/guide/usa/forces.htm.
á
Charles D.
Ferguson, ÒThe Long Road to Zero – Overcoming the Obstacles to a
Nuclear-Free World,Ó Foreign Affairs, January/February 2010, pp. 86-94,
available at: http://www.nuclearweaponslaw.com/The Long Road to
Zero.pdf
á
Graham
Allison, ÒNuclear Disorder:
Surveying Atomic Threats,Ó Foreign Affairs, January/February 2010, pp.
74-85, available at: http://www.nuclearweaponslaw.com/Nuclear Disorder.pdf
á
Robert S.
Norris & Hans M. Kristensen, Nuclear Notebook: U.S. Nuclear Forces, 2009,
Bulletin of the Atomic Scientists (May/June 2010) 57-71, available at http://thebulletin.metapress.com/content/067796p218428428/fulltext.pdf
á
Robert S.
Norris & Hans M. Kristensen, Nuclear Notebook: Russian Nuclear Forces,
2010, Bulletin of the Atomic Scientists (January/February 2010) 74-81,
available at http://thebulletin.metapress.com/content/4337066824700113/fulltext.pdf
á
ÒNuclear
Powers Emerge as U.S. Stockpile Shrinks,Ó The Heritage Foundation, created on
May 25, 2010, available at: http://www.heritage.org/Multimedia/InfoGraphic/Nuclear-Powers-Emerge-as-US-Stockpile-Shrinks
á
Federation
of American Scientists, Status of World Nuclear Forces, available at http://www.fas.org/programs/ssp/nukes/nuclearweapons/nukestatus.html.
á
Jack
Spencer, Learning to Love the Bomb, Heritage Foundation (August 25,
2003), available at http://www.heritage.org/Press/Commentary/ed082603b.cfm.
á
Letter by
President Barack Obama to the 2009 Carnegie Nonproliferation Conference, April
6, 2009, available at http://www.carnegieendowment.org/files/2009npc_obama.pdf.
á
Middle
Powers Initiative, A Global Public Good of the Highest Order: New
Imperatives and Openings for a Nuclear Weapon-Free World, Briefing Paper
for the Sixth Meeting of the Article VI Forum, January 2009, available at http://www.gsinstitute.org/mpi/pubs/A6F_Berlin_brief.pdf.
á
AmericaÕs
Strategic Posture, United States Institute of Peace Press Washington, D.C.
(2009) available at http://www.usip.org/files/file/strat_posture_report_adv_copy.pdf.
(read pages ix-xx, 3-37)
á
Remarks by
President Barack Obama,
Hradcany Square, Prague, Czech Republic, The
White House Office of the Press Secretary (April 5, 2009), available at http://www.whitehouse.gov/the_press_office/Remarks-By-President-Barack-Obama-In-Prague-As-Delivered/.
á
U.S.
Nuclear Weapons Policy, Council on Foreign Relations Press (April 2009),
available for downloading at http://www.cfr.org/publication/19226.
á
Abolishing
Nuclear Weapons; A Debate, Carnegie Endowment for International Peace
(February 2009), available for downloading at http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=22748.
á
Andrew J.
Grotto, Joseph Cirincione, Orienting the 2009 Nuclear Posture Review,
Center for American Progress, November 17, 2008,
available for downloading at http://www.americanprogress.org/issues/2008/11/nuclear_posture_review.html.
á
The
Nuclear Order – Build Or Break, Carnegie International
Nonproliferation Conference, Carnegie Endowment For International Peace, April
6, 2009, available at http://www.carnegieendowment.org/files/npc_build_or_break4.pdf.
á
U.S.
Nuclear Deterrence in the 21st Century: Getting It Right, The New Deterrent
Working Group (July 2009), available at http://www.centerforsecuritypolicy.org/upload/wysiwyg/center%20publication%20pdfs/NDWG-%20Getting%20It%20Right.pdf.
á
Kim R.
Holmes, Ph.D., James Jay Carafano, Ph.D., Peter Brookes, and Baker Spring, What
Americans Need to Know About Missile Defense: WeÕre Not There Yet, The
Heritage Foundation WebMemo No. 2512, June 30, 2009, available at http://www.heritage.org/Research/Reports/2009/06/What-Americans-Need-to-Know-About-Missile-Defense-Were-Not-There-Yet
á
Deputy
Secretary of State James B. Steinberg, Carnegie International Nonproliferation
Conference, Carnegie Endowment For International Peace, April 6, 2009,
available at http://www.carnegieendowment.org/files/npc_steinberg3.pdf.
á
Robert S.
Norris & Hans M. Kristensen, Nuclear Notebook: U.S. Nuclear Forces, 2009,
Bulletin of the Atomic Scientists (March/April 2009) 59-69, available at http://thebulletin.metapress.com/content/f64x2k3716wq9613/fulltext.pdf.
á
Robert S.
Norris & Hans M. Kristensen, Nuclear Notebook: Russian Nuclear Forces,
2009, Bulletin of the Atomic Scientists (May/June 2009) 55-64, available at
http://thebulletin.metapress.com/content/h304370t70137734/fulltext.pdf.
á
ÔContagiousÕ
Doctrine of Deterrence Has Made Non-Proliferation More Difficult, Raised New
Risks, Secretary-General Says In Address To East-West Institute,
SG/SM/11881 DC/3135 United Nations Department of Public Information, News and
Media Division, New York October 24, 2008, available
at http://www.un.org/News/Press/docs/2008/sgsm11881.doc.htm.
á
Arms
Control with Russia: Senators Should Provide Their Advice to the Obama
Administration, The Heritage Foundation WebMemo No. 2526, July 7, 2009,
available at http://www.heritage.org/Research/Reports/2009/07/Arms-Control-with-Russia-Senators-Should-Provide-Their-Advice-to-the-Obama-Administration.
á
Baker
Spring, Obama Missile Defense Plan Puts America at Risk, The Heritage
Foundation Backgrounder No. 2292, June 29, 2009, available at http://www.heritage.org/Research/Reports/2009/06/Obama-Missile-Defense-Plan-Puts-America-at-Risk.
á
Baker
Spring, Strategic Posture CommissionÕs Report Provides Necessary Guidance to
Congress, The Heritage Foundation WebMemo No. 2442, May 14, 2009, available
at http://origin.heritage.org/Research/Reports/2009/05/Strategic-Posture-Commissions-Report-Provides-Necessary-Guidance-to-Congress.
á
George P.
Shultz, William J. Perry, Henry A. Kissinger and Sam Nunn, Toward a
Nuclear-Free World, Wall Street
Journal, Jan. 15, 2008, available at http://online.wsj.com/public/article_print/SB120036422673589947.html.
á
Federation
of American Scientists, Natural Resources Defense Council, Union of Concerned
Scientists, Towards True Security: Ten Steps The Next President Should Take
To Transform U.S. Nuclear Weapons Policy, February 2008, available at http://www.fas.org/press/_docs/Toward%20True%20Security%202008%20.pdf.
á
James Jay
Carafano, Ph.D., Baker Spring and Mackenzie Eaglen, Providing for the Common
Defense: What 10 Years of Progress Would Look Like, Heritage Foundation
Backgrounder #2108, February 19, 2008 (read executive summary, pages 1-2),
available at http://www.heritage.org/Research/NationalSecurity/bg2108.cfm.
(Read portions relating to nuclear weapons and missile defense.)
á
Remarks of
Senator Barack Obama: A New Beginning, October 2, 2007, available at http://www.barackobama.com/2007/10/02/remarks_of_senator_barack_obam_27.php.
(Read portions relating to nuclear weapons.)
á
Michael Spies,
Stagnation and Redundancy: Report on the 2007 UN First Committee,
Disarmament Diplomacy No. 87, Spring 2008, available at http://www.acronym.org.uk/dd/dd87/87unfc.htm.
á
President
Bush Approves Significant Reduction in Nuclear Weapons Stockpile, White
House Press Release, Dec. 18, 2007, available at http://merln.ndu.edu/archivepdf/wmd/WH/20071218-3.pdf.
á
Hans
Kristensen, White House Announces (Secret) Nuclear Weapons Cuts, FAS
Strategic Security Blog, Dec 18, 2007, available at
http://www.fas.org/blog/ssp/2007/12/white_house_announces_secret_n.php.
á
Robert S.
Norris & Hans M. Kristensen, Nuclear Notebook: U.S. Nuclear Forces, 2008,
Bulletin of the Atomic Scientists (March/April 2008) 50-53, 58, available at http://thebulletin.metapress.com/content/pr53n270241156n6/fulltext.pdf.
á
Robert S.
Norris & Hans M. Kristensen, Nuclear Notebook: Russian Nuclear Forces,
2008, Bulletin of the Atomic Scientists (May/June 2008) 54-57, 62,
available at http://thebulletin.metapress.com/content/t2j78437407v3qv1/fulltext.pdf.
á
Hans M.
Kristensen, Chinese Nuclear Arsenal Increased by 25 Percent Since 2006,
Pentagon Report Indicates, FAS Strategic Security Blog, Mar. 6, 2008,
available at http://www.fas.org/blog/ssp/2008/03/chinese_nuclear_arsenal_increa.php.
á
Weapons of
Mass Destruction Commission, Weapons of Terror: Freeing the World of
Nuclear, Biological, and Chemical Arms, (final report 2006) 60-109,
available at http://www.wmdcommission.org/files/Weapons_of_Terror.pdf.
á
Baker
Spring, Weapons of Mass Destruction: Current Nuclear Proliferation
Challenges, The Heritage Foundation, Heritage Lectures, Oct. 4, 2006,
available at http://www.heritage.org/Research/Lecture/Weapons-of-Mass-Destruction-Current-Nuclear-Proliferation-Challenges.
á
George P.
Shultz, William J. Perry, Henry A. Kissinger and Sam Nunn, A World Free of
Nuclear Weapons, Wall Street Journal,
(Eastern edition) New York, N.Y., January 4, 2007, pg. A.15, available at http://www.fcnl.org/issues/item.php?item_id=2252&issue_id=54.
á
Norris,
Robert and Hans Kristensen, U.S. Nuclear Forces, 2007, Bulletin of the
Atomic Scientists 79 (January/February 2007), available at http://thebulletin.metapress.com/content/91n36687821608un/fulltext.pdf.
á
Hans Kristensen,
Status of World Nuclear Forces, 2007, The Nuclear Information Project
(March 29, 2007), available at http://www.nukestrat.com/nukestatus.htm.
á
Hans
Kristensen, US Air Force Decides to Retire Advanced Cruise Missile,
Strategic Security Blog, Federation of American Scientists (March 7, 2007),
available at http://www.fas.org/blog/ssp/2007/03/
(bottom of page).
á Mikhail Gorbachev, The Nuclear Threat,
January 31, 2007, available at http://www.wagingpeace.org/articles/2007/01/31_gorbachev_nuclearthreat.htm.
á
Dr. Mohamed ElBaradei, Preventing Nuclear Catastrophe: Where Do We Go From Here?,
International Conference on the Prevention of Nuclear Catastrophe, IAEA, Luxembourg, May 24 2007,
available at http://www.iaea.org/NewsCenter/Statements/2007/ebsp2007n006.html.
á
John
Burroughs, The Legal Framework for Non-Use and Elimination of Nuclear
Weapons, Briefing Paper for Greenpeace International, John Burroughs,
February 2006, Article VI Forum, The Hague, March 2, 2006, available at http://www.lcnp.org/disarmament/Gpeacebrfpaper.pdf.
á
Shimoda
et al. v. The State, Tokyo District Court, 7 December 1963. Source: www.helpicrc.org; Hanrei Jiho,
vol. 355, p. 17; translated in The Japanese Annual of International Law, vol.
8, 1964, p. 231, available at www.nuclearweaponslaw.com/Shimoda_v_State.doc.
á
BBC News, US
Adopts Tough New Space Policy, news.bbc.co.uk (October 18, 2006), available
at www.nuclearweaponslaw.com/USAdoptsToughNewSpacePolicy.pdf.
á
Robert M.
Sapolsky, A Natural History of Peace, 85 Foreign Affairs 104-120 (January/February
2006), available at www.nuclearweaponslaw.com/Natural_History_of_Peace.pdf.
á
John
Burroughs, The Global Threat of Nuclear Weapons (September 10, 2004),
available at http://www.lcnp.org/disarmament/GlobalThreatNW.htm.
á
Joseph
Circincione, Jon B. Wolfsthal, Miriam Rajkumar, Deadly Arsenals, 2d. Ed.,
Carnegie Endowment for International Peace (2005), available at http://www.nuclearweaponslaw.com/Deadly_Arsenals.pdf.
á
Combating
Weapons of Mass Destruction, Testimony before the Armed Services Committee of
the United States House of Representatives, March 17, 2004 (statement of Larry
M. Wortzel), available at http://www.heritage.org/Research/NationalSecurity/tst031704a.cfm
á
Report
of the Defense Science Board Task Force on Future Strategic Strike Forces,
February 2004, available at http://www.nuclearweaponslaw.com/fssf.pdf.
á
Ariel
Cohen, Preventing a Nightmare Scenario: Terrorist Attacks Using Russian Nuclear
Weapons and Materials, Heritage Foundation Backgrounder #1854 (May 20,
2005), available at http://www.heritage.org/Research/NationalSecurity/bg1854.cfm.
á
Jack
Spencer, Congress is Wrong to Defund Strategic Programs, Heritage
Foundation WebMemo # 618 (December 8, 2004), available at http://www.heritage.org/Research/NationalSecurity/wm618.cfm.
á
Jack Spencer
and Kathy Gudgel, The 2005 Quadrennial Defense Review: The Military
Industrial Base, Heritage Foundation WebMemo #761 (June 14, 2005),
available at http://www.heritage.org/Research/NationalSecurity/wm761.cfm.
á
Bruce T.
Goodwin, Frederick A. Tarantino, and Joan B. Woodward, Sustaining The
Nuclear Enterprise – A New Approach, (May 20, 2005), available at http://www.nuclearweaponslaw.com/sustainingtheenterprise.pdf.
á
Convention
Approach
á
Proposed
Convention on the Prohibition of the Development, Testing, Production,
Stockpiling, Transfer, Use and Threat of Use of Nuclear Weapons and on Their
Elimination, LawyersÕ Committee on Nuclear Policy, April, 1997, available
at http://www.lcnp.org/mnwc/convention.htm.
á
Statement
of Purpose and Summary of the MNWC, LawyersÕ Committee on Nuclear Policy,
available at http://www.lcnp.org/mnwc/mnwcsumm.htm
á
Commentary
on the MNWC (LawyersÕ Committee on Nuclear Policy), available at http://www.lcnp.org/mnwc/mnwccomm.htm.
á
See also
the additional materials collected at http://www.lcnp.org/mnwc/index.htm.
á
Transcript
of U.S. oral argument before the International Court of Justice in the
"Nuclear Weapons Advisory Case"3
available on the ICJ website at www.icj-cij.org. (Direct hotlink: available
at http://www.icj-cij.org/docket/files/95/5947.pdf.)
The U.S. oral argument begins on page 55. Extra link to US oral argument.
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
á
Reference
Materials:
á
National
Security and Nuclear Weapons in the 21st Century, US Department of Energy, US
Department of Defense, September 2008, available at http://www.defenselink.mil/news/nuclearweaponspolicy.pdf.
á
Statement
of the LawyersÕ Committee on Nuclear Policy, Ending U.S. Reliance On Nuclear
Weapons and Achieving Their Global Elimination: Wise Policy and Required By Law,
March 2008, available
at http://www.lcnp.org/disarmament/LCNPstatement2008.pdf.
á
Sharon
Squassoni, The New Disarmament Discussion, Current History,
Carnegie Endowment For International Peace, January 2009, 33-38, available at http://www.carnegieendowment.org/files/squassoni_current_history.pdf.
á
Nuclear
Crisis Points: Iran, North Korea, Syria and Pakistan, Carnegie
International Nonproliferation Conference, Carnegie Endowment For International
Peace, April 6, 2009, available at http://www.carnegieendowment.org/files/npc_crisis_points3.pdf.
á
After
the Khan Network: What Works, What DoesnÕt and Where Do We Go?, Carnegie
International Nonproliferation Conference, Carnegie Endowment For International
Peace, April 7, 2009, available at http://www.carnegieendowment.org/files/npc_khan3.pdf.
á
Godfried
van Benthem van den Bergh, The Taming of the Great Nuclear Powers,
Policy Outlook, Carnegie Endowment For International Peace (2009) http://www.carnegieendowment.org/files/taming_great_powers.pdf.
á
Baker
Spring, Concerns on Proposed Reduction of U.S. Nuclear Stockpile to 1,000
Weapons, The Heritage Foundation WebMemo No. 2274, February 5, 2009,
available at http://www.heritage.org/Research/Reports/2009/02/Concerns-on-Proposed-Reduction-of-US-Nuclear-Stockpile-to-1000-Weapons.
á
Middle
Powers Initiative, Back from the Margins: The Centrality of Nuclear
Disarmament (Briefing Paper for the Fifth Meeting of the Article VI Forum,
Dublin, Ireland) March 27-29, 2008, available at http://www.gsinstitute.org/mpi/pubs/A6F_Dublin_brief.pdf.
á
Middle
Powers Initiative, Visible Intent: NATOÕs Responsibility to Nuclear
Disarmament (Briefing Paper) January 2008, available at http://www.middlepowers.org/pubs/NATO_brief_2008.pdf.
á
Hans M.
Kristensen, White House Guidance Led to New Nuclear Strike Plans Against
Proliferators, Document Shows, Strategic Security Blog, Federation of
American Scientists (Nov. 5, 2007), available at http://www.fas.org/blog/ssp/2007/11/white_house_guidance_led_to_ne.php.
á
Baker
Spring, Nuclear Games: A Tool for Examining
Nuclear Stability in a Proliferated Setting, Heritage
Lectures No. 1066, Nov. 15, 2007, available at http://www.heritage.org/Research/NationalSecurity/upload/hl_1066.pdf.
á
Baker
Spring, Omnibus Eliminates Funding for the
Reliable Replacement Warhead Program, Heritage
WebMemo No. 1755, Dec. 18, 2007, available at http://www.heritage.org/research/lecture/nuclear-games-a-tool-for-examining-nuclear-stability-in-a-proliferated-setting.
á
2006
National Security Strategy of the United States 19-24, available at www.strategicstudiesinstitute.army.mil/pdffiles/nss.pdf.
á
U.S.
Department of Defense, Strategic Deterrence Joint Operating Concept 1-8,
February 2004, available at http://www.wslfweb.org/nukes/foia.htm.
á
Jack
Spencer and Baker Spring, The Advantages of
Expanding the Nuclear Navy, Heritage WebMemo No.
1693, Nov. 5, 2007, available at http://www.heritage.org/Research/Reports/2007/11/The-Advantages-of-Expanding-the-Nuclear-Navy.
á
Michael
Spies, Controlling the Nuclear Fuel Cycle, Disarmament Times, Spring
2008, p. 1, available at http://www.lcnp.org/energy/DTspring08.pdf.
á
Jack
Spencer, The Nuclear Renaissance: Ten Principles to Guide U.S. Policy,
Heritage WebMemo No. 1640, Sep. 26, 2007, available at http://www.heritage.org/Research/Reports/2007/09/The-Nuclear-Renaissance-Ten-Principles-to-Guide-US-Policy.
á
Dr. John
Burroughs, Jacqueline Cabasso, Felicity Hill, Andrew Lichterman, Jennifer
Nordstrom, Michael Spies, Peter Weiss, Nuclear Disorder or Cooperative
Security? An Assessment of the Final Report of the WMD Commission and Its
Implications for U.S. Policy, (2007):
á
Introduction,
available at http://www.wmdreport.org/pages/NuclearDisorder-introduction.pdf.
á
Executive
Summary, available at http://www.wmdreport.org/pages/NuclearDisorder-summary.pdf.
á
Recommendations,
available at http://www.wmdreport.org/pages/NuclearDisorder-recommendations.pdf.
á
George
Perkovich, Jessica T. Mathews, Joseph Cirincione, Rose Gottemoeller, and Jon B.
Wolfsthal, Universal Compliance: A
Strategy for Nuclear Security 13-49, Carnegie Endowment for International
Peace (2007), available at http://www.carnegieendowment.org/files/univ_comp_rpt07_final1.pdf.
á
Baker
Spring, CongressÕs Critical Role in the Reliable Replacement Warhead (RRW)
Program, Heritage Foundation, Executive Memorandum No. 1026, May 11, 2007, available
at http://www.heritage.org/Research/NationalSecurity/upload/em_1026.pdf.
á
The
Secretary of State for Defence and The Secretary of State for Foreign and
Commonwealth Affairs, The Future of the United KingdomÕs Nuclear Deterrent,
by Command of Her Majesty (2006), available at http://www.mod.uk/NR/rdonlyres/AC00DD79-76D6-4FE3-91A1-6A56B03C092F/0/DefenceWhitePaper2006_Cm6994.pdf.
á
Michael Fordham QC, Naina Patel, Proposed Replacement of
Trident, Joint Opinion for Peacerights, available at http://www.nuclearinfo.org/documents/Joint_Opinion.pdf.
á
Rebecca
Johnson, Nicola Butler, Stephen Pullinger, Worse than Irrelevant, British
Nuclear Arms in the 21st Century, The Acronym Institute for Disarmament
Diplomacy (2006), available at http://www.acronym.org.uk/uk/Worse_than_Irrelevant.pdf.
á
The UK
Trident System, The Acronym Institute (2007), available at http://www.acronym.org.uk/uk/trident.htm.
á
Joint
Chiefs of Staff, Joint Pub 3-12, Doctrine for Joint Nuclear Operations
(15 December 1995), available at http://www.nuclearweaponslaw.com/nukeop3_12_1995.pdf;
á
Joint
Chiefs of Staff, Joint Pub 3-12, Doctrine for Joint Nuclear Operations
(DRAFT ÒFinal Coordination (2) 15 March 2005), available at http://www.wslfweb.org/docs/doctrine/3_12fc2.pdf.5
á
U.S. briefs
before the ICJ in the Nuclear Weapons Advisory Case: The U.S. submitted two
briefs, one in connection with a request for an advisory opinion as to nuclear
weapons by the World Health Organization of the United Nations and the other in
connection with a similar request by the U.N. General Assembly, available as
follows:
á
Brief re
General Assembly request:
á
available
at ICJ website: http://www.icj-cij.org/docket/files/95/8700.pdf.
á
Brief re
World Health Organization request:
á
at ICJ
website: http://www.icj-cij.org/docket/files/93/8770.pdf.
á
New
Zealand, Iranian, British, and Russian briefs before the ICJ:
á
New
Zealand: available at http://www.icj-cij.org/docket/files/95/8710.pdf.
á
Iran:
available at http://www.icj-cij.org/docket/files/95/8678.pdf.
á
United
Kingdom and Northern Ireland: available at http://www.icj-cij.org/docket/files/95/8802.pdf.
á
Russian:
available at http://www.icj-cij.org/docket/files/95/8796.pdf.
á
British and
Russian oral arguments before the ICJ:
á
British:
available at (British oral argument begins at p. 20) http://www.icj-cij.org/docket/files/95/5947.pdf.
á
Russian:
available at http://www.icj-cij.org/docket/files/95/5939.pdf.
(Russian oral argument begins at p. 39).
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.
á
Reference
Materials:
á
Hans M.
Kristensen, Nuclear Safety and the Saga About the Missing Bent Spear,
Strategic Security Blog, Federation of American Scientists (Feb. 22, 2008),
available at http://www.fas.org/blog/ssp/2008/02/nuclear_safety_and_the_saga_ab.php.
á
Thom
Shanker, U.S. Air Force Chiefs Face Firing After Nuclear Inquiry, Intl Herald Tribune Americas, June 5
2008, http://www.iht.com/articles/2008/06/05/america/pent.php.
á
U.S.
Nuclear Weapons in Europe After the Cold War (Presentation To: Nuclear
Proliferation: History and Current Problems, Florence, Italy) October 4-5,
2007, available at http://www.nukestrat.com/pubs/Brief_Italy2007.pdf.
á
Acronym
Institute, NATO and Nuclear Weapons: NATO Summit, Bucharest, 2 - 4 April
2008, http://www.acronym.org.uk/nato/index.htm.
á
Baker
Spring, President Reagan's Strategic Defense Initiative Proposal 25 Years
Later: A Better Path Chosen, Heritage WebMemo No. 1840, Mar. 10, 2008,
available at http://www.heritage.org/Research/BallisticMIssileDefense/wm1841.cfm.
á
Nuclear
9/11: The Ongoing Failure of Imagination, The Continuing Misuses of Fear,
Bulletin of the Atomic Scientists 36, 42 (September/October 2006), available at
www.nuclearweaponslaw.com/BulletinAtomicSciNuclear911.pdf.
á
Jacques E.
C. Hymans, North KoreaÕs Nuclear Neurosis, Bulletin of the Atomic
Scientists 45 (May/June 2007), available at www.nuclearweaponslaw.com/BulletinAtomicSciNKoreaNeurosis.pdf.
á
Keir A.
Leiber and Daryl G. Press, Superiority Complex, Atlantic Monthly
(July/August 2007), available at www.nuclearweaponslaw.com/Superiority_Complex_article.pdf.
á
Congressional
Hearings on Weapons of Mass Destruction: Current Nuclear Proliferation
Challenges, Committee on Government Reform, Subcommittee on National
Security, Emerging Threats, and International Relations, Serial No. 109-242,
109th Cong., 2d Sess. (September 26, 2006), available at:
á
Part I: http://www.gsinstitute.org/gsi/docs/SNS_Testimony_PartI.pdf.
á
Part II: http://www.gsinstitute.org/gsi/docs/SNS_Testimony_PartII.pdf.
á
Part III: http://www.gsinstitute.org/gsi/docs/SNS_Testimony_PartIII.pdf.
á
Thirteen
Practical Steps: Legal or Political?, Peter Weiss, John Burroughs, Michael
Spies, May 2005, available at http://www.lcnp.org/disarmament/npt/13stepspaper.htm.
á
Presentations
to the NPT Review Conference on Article VI Compliance, Civil Society
(2005), available at http://www.lcnp.org/disarmament/npt/ArtVIcompliance.pdf.
á
Andrew
Lichterman and Jacqueline Cabasso, War is Peace, Arms Racing is Disarmament:
The Non-Proliferation Treaty and the U.S. Quest for Global Military Dominance, Western States Legal Foundation Special
Report (May, 2005), available at http://www.nuclearweaponslaw.com/warispeace.pdf.
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.
á
Reference
Materials
á
Are the
Requirements for Extended Deterrence Changing?, Carnegie International
Nonproliferation Conference, Carnegie Endowment For International Peace, April
6, 2009, available at http://www.carnegieendowment.org/files/npc_extended_deterrence4.pdf.
á
Keir A.
Lieber and Daryl G. Press, The Rise of U.S. Nuclear Primacy, 85 Foreign
Affairs 42-54 (March/April 2006), available at www.nuclearweaponslaw.com/Rise_of_US_Nuclear_Primacy.pdf.
á
Enforcing
A World Without Nuclear Weapons, Carnegie International Nonproliferation
Conference, Carnegie Endowment For International Peace, April 7, 2009,
available at http://www.carnegieendowment.org/files/npc_enforcement3.pdf.
á
Baker
Spring and Kathy Gudgel, The Role of Nuclear Weapons in the 21st Century,
Heritage Foundation Webmemo #721 (April 13, 2005) available at http://www.heritage.org/Research/NationalSecurity/wm721.cfm.
á
Nuclear
Exchange, Responses to The Rise of U.S. Nuclear Primacy article, 85
Foreign Affairs 149-57
(September/October 2006), available at www.nuclearweaponslaw.com/NuclearPrimacyCommentary.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.
á
Reference
Materials:
á
2002
National Security Strategy of the United States, available at http://www.globalsecurity.org/military/library/policy/national/nss-020920.pdf.
á
John
Deutch, A Nuclear Posture for Today, 84 Foreign Affairs 49
(January/February 2005), available at www.nuclearweaponslaw.com/A_Nuclear_Posture_for_Today.pdf.
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
á
Reference
Materials:
á
Ambassador
Rogelio Pfirter, WMD Threats and International Organizations,
Organization For The Prohibition Of Chemical Weapons, Carnegie Endowment for
International Peace, June 17, 2009 http://www.carnegieendowment.org/files/pfirter20090617.pdf.
á
Joint
Chiefs of Staff, Joint Pub 3-12.1, Doctrine for Joint Theater Nuclear
Operations (9 February 1996), available at http://www.wslfweb.org/docs/doctrine/theaternukeops.pdf
á
briefs of
New Zealand and Iran before the ICJ:
á
New
Zealand: available at http://www.icj-cij.org/docket/files/95/8710.pdf.
á
Iran: available
at http://www.icj-cij.org/docket/files/95/8678.pdf.
á
Alexei
Arbatov and Vladimir Dvorkin, Revising Nuclear Deterrence, Center for
International and Security Studies at Maryland (Oct., 2005), available at http://www.nuclearweaponslaw.com/arbatov_dvorkin.pdf.
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
1. Rule of Necessity: Review
the background, history, and contemporary meaning of this rule of the law of
armed conflict. What is the nature of this rule? Is it a rule of conventional
or customary law or both?6
Is it a generally accepted principle of law? (See discussion at 654-57.)7 Does the characterization of the nature of the rule
matter? Is its application to nuclear weapons limited by the practice of many
States of the policy of nuclear deterrence? Identify as many actual cases and
proceedings in which the rule has been interpreted and analyze such
interpretations, insofar as relevant to the lawfulness of the use or threat of
use of nuclear weapons. Was this rule applied in the Nuremberg or other war
crime proceedings, and, if so, how? Could a use or threat of use of nuclear
weapons be unlawful under this rule if it was not otherwise in violation of
customary international law? To what extent, if at all, is a StateÕs obligation
to comply with this rule excused in extreme circumstances of self-defense (see,
e.g., 174-85;
U.S. oral argument before the ICJ at 67)? Is this rule subject to per se application as to the lawfulness or unlawfulness
of the use or threat of use of nuclear weapons? Most importantly and
controversially, what is the range of potential effects that must be considered
in evaluating whether the potential use of a nuclear weapon would violate this
rule? Would only the "direct" effects be relevant? Or would
foreseeable or other indirect effects also be relevant? For example, if one is
evaluating the prospective lawfulness of a nuclear strike under this rule, must
one include in the analysis an evaluation of the potential effects of possible
retaliatory responses by oneÕs adversary or its allies or other States and of
the effects of oneÕs own escalatory strikes that might result in light of such
possible or actual retaliatory strikes? Most centrally, given that this rule
applies to the use of all weapons, are there any unique problems involved in
applying it to the use of nuclear weapons? If so, what are those problems and
how may they be dealt with? Develop a series of hypotheticals illustrating the
application of this rule to the use and threat of use of nuclear weapons.
Discuss any other aspects of this rule that you find interesting or
particularly applicable to the issues of the lawfulness of the use or threat of
use of nuclear weapons. (52-63, 124-25, 219-21, 705-07.)
2. Rule of Proportionality: Review the background, history, and
contemporary meaning of this rule of the law of armed conflict. What is the
nature of this rule? Is it a rule of conventional or customary law or both?8 Is it a generally accepted
principle of law? (See discussion
at 654-57.) Does the characterization as to the nature of the rule matter? Is
its application to nuclear weapons limited by the practice of many States of
the policy of nuclear deterrence? Identify as many actual cases and proceedings
in which the rule has been interpreted and analyze such interpretations,
insofar as relevant to the lawfulness of the use or threat of use of nuclear
weapons. Was this rule applied in the Nuremberg or other war crime proceedings,
and, if so, how? Could a use or threat of use of nuclear weapons be unlawful
under this rule if it was not otherwise in violation of customary international
law? To what extent, if at all, is a StateÕs obligation to comply with this
rule excused in extreme circumstances of self-defense (see, e.g., 174-85; U.S. oral argument
before the ICJ at 67)? Is this rule subject to per se application as to the lawfulness or
unlawfulness of the use or threat of use of nuclear weapons? Most importantly
and controversially, what is the range of potential effects that must be
considered in evaluating whether the potential use of a nuclear weapon would
violate this rule? Would only the "direct" effects be relevant? Or
would foreseeable or other indirect effects also be relevant? For example, if
one is evaluating the prospective lawfulness of a nuclear strike under this
rule, must one include in the analysis an evaluation of the potential effects
of possible retaliatory responses by oneÕs adversary or its allies or other
States and of the effects of oneÕs own escalatory strikes that might result in
light of such possible or actual retaliatory strikes? Most centrally, given
that this rule applies to the use of all weapons, are there any unique problems
involved in applying it to the use of nuclear weapons? If so, what are those
problems and how may they be dealt with? Develop a series of hypotheticals
illustrating the application of this rule to the use and threat of use of
nuclear weapons. Discuss any other aspects of this rule that you find
interesting or particularly applicable to the issues of the lawfulness of the
use or threat of use of nuclear weapons. (39-52, 136-38, 220, 282, 686-87.)
3. Rule of Discrimination: Review the background, history,
and contemporary meaning of this rule of the law of armed conflict. What is the
nature of this rule? Is it a rule of conventional or customary law or both?9
Is it a generally accepted principle of law? (See discussion at 654-57.) Does the
characterization matter as to the nature of the rule? Is its application to
nuclear weapons limited by the practice of many States of the policy of nuclear
deterrence? Identify as many actual cases and proceedings in which the rule has
been interpreted and analyze such interpretations, insofar as relevant to the
lawfulness of the use or threat of use of nuclear weapons. Was this rule
applied in the Nuremberg or other war crime proceedings, and, if so, how? Could
a use or threat of use of nuclear weapons be unlawful under this rule if it was
not otherwise in violation of customary international law? To what extent, if
at all, is a StateÕs obligation to comply with this rule excused in extreme
circumstances of self-defense (see, e.g., 174-85; U.S. oral
argument before the ICJ at 67)? Is this rule subject to per se application as to the lawfulness or
unlawfulness of the use or threat of use of nuclear weapons? Most importantly
and controversially, what is the range of potential effects that must be
considered in evaluating whether the potential use of a nuclear weapon would
violate this rule? Would only the "direct" effects be relevant? Or
would foreseeable or other indirect effects also be relevant? For example, if
one is evaluating the prospective lawfulness of a nuclear strike under this
rule, must one include in the analysis an evaluation of the potential effects
of possible retaliatory responses by oneÕs adversary or its allies or other
States and of the effects of oneÕs own escalatory strikes that might result in
light of such possible or actual retaliatory strikes? Most centrally, given
that this rule applies to the use of all weapons, are there any unique problems
involved in applying it to the use of nuclear weapons? If so, what are those
problems and how may they be dealt with? Develop a series of hypotheticals
illustrating the application of this rule to the use and threat of use of
nuclear weapons. Discuss any other aspects of this rule that you find
interesting or particularly applicable to the issues of the lawfulness of the
use or threat of use of nuclear weapons. (64-9, 142, 216-19, 699-705.)
4. Role of Law of Armed Conflict in Target
Selection: What is the
role of the law of armed conflict in target selection by the United States?10 By other States? What
criteria are used? What guidelines are in place? What oversight is conducted?
What records are maintained? What accountability is enforced? What, if any,
sanctions are imposed for deviations from the determinations of legal advisors
as to the lawfulness of particular strikes? Are there military manuals or other
documents establishing protocols for such matters, and, if so, what do they
say? What, in particular, is the role of the law of armed conflict in planning
by the United States and other States as to the circumstances in which nuclear
weapons might be used or their use threatened? There has been a lot of
reporting in the media about the role of lawyers in target selection in recent
military operations. There has also been some interesting professional
discussion of the matter (e.g., various articles in Andru E. Wall, Ed.,
Legal and Ethical
Lessons of NATOÕs Kosovo Campaign, vol. 78, International Law Studies
(Naval War College, Newport, Rhode Island 2002). Have there been Congressional
hearings on the topic? What else is out there? What are other States doing in
this regard? What ethical obligations does a lawyer have who is participating
in this process with the military if his or her legal judgment is overridden on
military grounds? (45-49, 133-34, 188-89, 226-27, 536, 586, 673, 735-36, 654.)
5. Law of Neutrality: What is the
contemporary law of neutrality? To what extent would the use or threat of use
of nuclear weapons violate the neutrality rights of a neutral State if the
radiation or other effects of the contemplated or threatened strike (a) would
likely or (b) might possibly extend into the territory of the neutral State?
Would the law of neutrality only be violated if, after the fact, it turned out
that the radiation or other effects had in fact extended into the neutral
State? Or would such law be violated if, in advance of the strike, the
extension of such effects into the State appeared (a) possible or (b) likely or
(c) had been foreseeable? What actual judicial or other decisions are available
on this point and what do they show? Were these issues raised in the Nuremberg
or other war crime proceedings or in reparations or other damages actions?
(74-76, 146-48, 221-26, 699-705.)
6. Bases for a Per Se Rule--Level of Certainty as to the
Likelihood of Impermissible Effects that Must Be Present to Render the Use or
Threat of Use of Nuclear Weapons Unlawful: What level of likelihood must be
present that the use of a nuclear weapon would cause impermissible effects for
such use to be per se
unlawful? What is the validity of the legal position taken by the United States
in the Nuclear Weapons Advisory Case that, for the use or threat of use of nuclear
weapons to be per se
unlawful, it would have to be the case that every use of every type of nuclear
weapon would "necessarily" violate the law of armed conflict, or that
every use of nuclear weapons would "inevitably" escalate into a
massive strategic nuclear exchange, resulting "automatically" in the
"deliberate" destruction of the population centers of opposing sides?
What is the validity of the United StatesÕ choice of
language--"necessarily," "inevitably,"
"automatically," and "deliberate"? Is the United States
correct that such high levels of certainty and intentionality as to unlawful
consequences must be present before a per se rule could arise? As the seriousness of
the impermissible effects increases, does the level of probability of such effects
that must be present for unlawfulness decrease? (132-33; see also,
102-03, 113, 226-28,
255-75, 654-57, 762-66.)
7. Risk Analysis: Under the rules of necessity,
proportionality, and discrimination, what level of likelihood of impermissible
effects must be present for a prospective use of nuclear weapons to be
unlawful? What is the relevance of risk analysis to the evaluation of the
lawfulness or unlawfulness of the use or threat of use of nuclear weapons? What
legal basis is there for the application of risk analysis in this context? Are
there any decisions of courts of the United States or of other States or of war
crimes tribunals applying risk analysis? If not why not, and what does this
mean for the applicability of risk analysis to the use or threat of use of
nuclear weapons? (131-36, 162-71, 186-192, 279-92, 293-311, 313-37, 339-45,
729-59.)
8. Mens Rea/Scienter:
What, if any, mental state is required for the violation by a State of
the law of armed conflict applicable to the use or threat of use of nuclear
weapons? What, if any, mental state is required for the violation of such law
by an individual government official or military person? How is responsibility
allocated along the chain of command of the civilian and military leadership in
the United States for violations of the law of armed conflict in connection
with the use or threat of the use of nuclear weapons? What mental state is
required by current U.S. legislation (see, e.g., 18 U.S.C. ¤ 2441) criminalizing certain violations of the law
of armed conflict? Does the mens rea element for the violation of the rules of the law of armed
conflict differ from rule to rule? Does it differ, depending upon the terms of
any convention setting forth the particular rule? Most centrally: What role has
the issue of mens rea/scienter played in the traditional analysis of
the issue of the lawfulness of the use and threat of use of nuclear weapons?
What role did it play in the Nuremberg and other war crimes proceedings? Why has
it not played a greater role in the traditional analysis of the lawfulness of
the use and threat of use of nuclear weapons? Should it? If it is assumed that
the threat of use of nuclear weapons is unlawful under the law of armed
conflict and that the U.S. policy of deterrence constitutes the threat of use
of nuclear weapons, what factors as to mens rea/scienter would affect the potential
culpability/liability of the civilian and military personnel of the United
States implementing the policy of nuclear deterrence and of persons working for
defense contractors making the weapons backing up the policy of deterrence?
(94-98, 245-47, 313-37, 722-26, 753-59.)
9. The Case for the Lawfulness of the Use and
Threat of Use of Nuclear Weapons: Write a brief in support of the
lawfulness of the use of nuclear weapons in the arsenal of the United States.
The brief should contain a "Facts" sections setting forth the
dispositive facts as to nuclear weapons and their effects and a "Law"
section, analyzing those facts in light of the applicable law. Consider such
questions as the following:
á
Can the
United States control the radiation effects of nuclear weapons? Are such
effects relevant to the consideration of the lawfulness of the use and threat
of use of nuclear weapons? Is the United StatesÕ characterization before the
ICJ that "[m]odern nuclear weapon delivery systems are, indeed, capable of
precisely engaging discrete military objectives" (oral argument at 70)
accurate as to the radiation effects of such weapons?
á
Was it the
U.S. position before the ICJ that the radiation effects of nuclear weapons are
not relevant to lawfulness of the use of such weapons? Is this the U.S.
position generally? Is such a position valid under the law of armed conflict?
á
Is it a
fair characterization of the U.S. position before the ICJ that the U.S. argued
that the potential effects of the use of conventional weapons and nuclear
weapons would be generally comparable (140)? Is this factually accurate? What
is the significance of this point to the issue of the lawfulness of the threat
or use of nuclear weapons?
á
Is it a
fair characterization that the United States, in its arguments before the ICJ,
only defended the lawfulness of the limited use of low yield nuclear weapons in
remote areas? Did the United States implicitly acknowledge, in its arguments to
the ICJ, that the use of high yield nuclear weapons and the widescale use of
limited nuclear weapons would be unlawful?
á
What basis,
if any, is there for asserting the lawfulness of the use of high yield nuclear
weapons against "co-located" military targets in urban areas and of
the widescale use of low yield nuclear weapons in such areas?
á
Would the
United StatesÕ use and threat of use of nuclear weapons be per se unlawful under the rules of necessity,
proportionality, and discrimination if the following facts are assumed:
á
That the
United States recognizes the substance and binding nature of such rules and
their applicability to the use and threat of use of nuclear weapons,
á
That the
objective facts as to the effects of nuclear weapons are such that it is clear
that no use of nuclear weapons could comply with such rules,
á
That the
United States and other nuclear weapons States and States relying upon such
States for their security, while refraining from the use of nuclear weapons,
have not done so out of a sense of obligation, but, instead, have always
asserted and presently assert the right to use such weapons?
á
In other
words, can the United States be bound by the application of a general rule it
recognizes when it does not accept the validity of the application of that rule
in a specific instance? Or is this a bogus issue in the present context? Is the
dispute really one of fact as to the potential effects of the use of nuclear weapons?
And of law, as to the prerequisites for the existence of a per se rule? Does the United States, in fact,
recognize that the use of nuclear weapons would be per se unlawful if such a use could never comply
with the law of armed conflict, and simply dispute the factual matter and stand
hard on the legal point that, for a per se rule to arise, it would have to be clear
that all uses of nuclear weapons in all circumstances would be unlawful?
á
If it is
assumed that some uses of nuclear weapons by the United States (say, the use of
low yield tactical nuclear weapons in remote areas) would be lawful and that
other uses (say, the use of high yield nuclear weapons) would be unlawful, what
does that mean as to the lawfulness of the U.S. policy of deterrence, insofar
as it without qualification threatens the use of all of the nuclear weapons in
the U.S. arsenal and such weapons include the high yield nuclear weapons whose
use would be presumptively unlawful?
á
If it is
assumed that any use of a nuclear weapon would carry with it some risk that the
weapon would have impermissible effects (e.g., hitting the wrong target, causing
impermissibly widescale injury, and precipitating major escalation), what is
the legal significance of such probabilities?
á
What is the
range of potential effects that must be considered in evaluating whether a
particular use of a nuclear weapon would violate the law of armed conflict? Is
it sufficient to evaluate the lawfulness of a potential use of nuclear weapons
based only upon the direct effects, or must the broader effects (such as the
effects of resultant escalation and the long term effects of the resultant
radiation upon human, animal and plant life) be taken into consideration?
á
Under the
rule that civilians may not be targeted "as such," would the use of
nuclear weapons against major military targets in areas where there are many
civilians be unlawful if it were foreseeable that many civilians would be
killed and injured? What is the contemporary validity, content and defensibleness
of the "as such" rule?
á
Is it a
fair characterization to say that a StateÕs use of a nuclear weapon would not
comply with the rule of necessity if the use would likely cause such extensive
effects as to boomerang on the State and result in its sustaining more damage
than the original target was worth?
10. Lawfulness of the Arsenal of Nuclear Weapons Maintained by the United
States: What nuclear weapons does the United States currently maintain in
its active stockpile?11 As to the
various types of such weapons, what are the arguments as to the lawfulness or
unlawfulness of their use or threat of use? What nuclear weapons does the
United States currently maintain in its inactive stockpile? What is the
lawfulness of the prospective use or threat of use of such weapons? Review the
various types of nuclear weapons the United States has in its active and
inactive stockpiles and analyze which of those types of weapons fit within the
categories of nuclear weapons whose lawfulness the United States urged before
the ICJ and as to which the ICJ concluded it did not have sufficient facts to
determine lawfulness, i.e., highly accurate low yield nuclear weapons.
Correspondingly, analyze what portion of the stockpiles is made up of the types
of weapons that the United States did not contend could lawfully be used and
whose use the ICJ ostensibly found would generally be unlawful. Analyze the
facts as to the inactive weapons: How close to ready are they for use? (129-31,
161, 171-74, 483-500, 501-14, 585-98, 605-32; see also, 2002
Nuclear Posture Review Materials, including Professor MoxleyÕs paper and
background materials describing the Bush AdministrationÕs 2002 Nuclear Posture
Review, http://www.nuclearweaponslaw.com/2002NPR/2002NPR_Article.html.)
11. Mininukes: What are mininukes? Low yield nuclear weapons?
Tactical nuclear weapons? Are these all the same thing? What are the
distinctions, if any, between such types of weapons? What role do these types
of weapon play in U.S. nuclear policy and planning today? What role are they
currently projected to play in the future? What role have they played in the
past? What role should they play in the future? Is the use and threat of use of
such weapons more or less defensible than that of higher yield nuclear weapons?
To what extent do such weapons release less radiation than higher yield nuclear
weapons? What is the status and significance of recently proposed revisions to
current U.S. legislation banning research and development of nuclear weapons
with yields of less than five kilotons (see, e.g., materials collected at http://www.nuclearweaponslaw.com/Mini_Nukes_Bunker_Busters.html).
What does the legislative history of such legislation and efforts to amend it
reveal as to the arguments for and against such legislation? Is the use and
threat of use of mininukes and low yield and tactical nuclear weapons lawful
under the law of armed conflict? Is the use of such weapons per se unlawful? In what circumstances, if any,
would the use and threat of use of such weapons be lawful? In what
circumstances, if any, would they be unlawful? With respect to the U.S.
argument that "[m]odern nuclear weapon delivery systems are, indeed,
capable of precisely engaging discrete military objectives" (U.S. oral
argument at 70)--is this factual assertion accurate insofar as concerns the
radiation effects of nuclear weapons? If not, what is the legal significance of
such U.S. inability to control radiation effects? Is the use of mininukes more
likely to be lawful than the use of high yield nuclear weapons, since, by
definition, the effects of the mininukes are presumably less extensive? Is the
use of mininukes more likely to be unlawful because conventional weapons could
more certainly achieve any military objective for which the mininukes might be
used? Are there any particular types of military objectives that only nuclear
weapons could achieve? If so, what are they? Why canÕt conventional weapons
achieve such objectives? How close are we to being able to develop a
conventional weapons capability to address such objectives? With respect to the
lawfulness of the first use of mininukes, what is the legal significance of the
fact that such use would cross the "nuclear threshold"? (129-31,
171-74, 190, 483-500, 506-14, 585-98; see also, John Burroughs, The Lawfulness of
"Low-Yield," Earth-Penetrating Nuclear Weapons, January 20, 2003
(available at http://www.lcnp.org/ wcourt/ nwlawfulness.htm.)
12.
Relative
Costs of Nuclear versus Conventional Weapons: Analysis as to whether
nuclear weapons, on the assumption that they are intended for deterrence alone
and will not be used, are cheaper than conventional weapons in terms of overall
weapons costs, or, whether, given the costs of byproducts disposal and of
addressing health issues resultant of the nuclear weapons regime, nuclear
weapons end up costing as much as or more than conventional weapons; analysis
of related legal issues.
13.
Comparison
of the Legal Regimes Applicable Respectively to Nuclear, Chemical and
Biological Weapons and Analysis of the Reasons for the Differences: What are the differences between the
applicable law of armed conflict as to nuclear, chemical and biological
weapons? What are the reasons for
such differences? Do the radiation effects of nuclear weapons constitute
poisons, poisonous gas or analogous materials? Is the U.S. position (see, e.g., 143-44) correct that the radiation
effects of nuclear weapons do not render such weapons unlawful since the blast
and heat effects are potentially lawful? Is that the rule, that, as long as a
weapon has a potentially lawful effect, its use is lawful, regardless of the
fact that it also causes presumptively unlawful effects? Is the United States
correct that the prohibition of the use of poison weapons "does not prohibit
nuclear weapons, which are designed to injure or cause destruction by means
other than poisoning the victim, even though nuclear explosions may also create
toxic radioactive byproducts?" (See 143-44.) If so, what is the
basis of such a rule? Where does it appear? What support is there for it? Is it
valid? What is the relevance of the principle of "double effect" to
such rule (see
discussion at 387-90). Did the United States, in its oral argument to the ICJ
in support of the lawfulness of the threat and use of nuclear weapons (see,
e.g., oral
argument at 70), ignore the radiation effects of such weapons? If so, was the
United States correct that such effects are irrelevant? Most centrally: Apropos
of the U.S. argument (see, e.g., oral argument before the ICJ at 61),
that, if the use of nuclear weapons, like that of chemical and biological
weapons, were unlawful under international law, there would be a convention
setting forth such unlawfulness, as there is with chemical and biological
weapons, analyze whether the use of chemical and biological weapons was
unlawful, and recognized as such, before the conventions formally outlawing such weapons were
enacted. Analogously, is the United States correct in its ostensible position (see,
e.g., oral
argument before the ICJ at 72) that the unnecessary suffering principle
prohibits the use of weapons designed specifically to increase the suffering of
persons attacked beyond that necessary to accomplish a particular military
objective, but does not prohibit the use of weapons that simply have that
effect, among other permissible effects? Is the impermissible effect acceptable
under the law of armed conflict if it was not the result of a "specific
design" to cause such effect, but rather a natural but not specifically
intended effect of the specifically desired effects? Are we back to the
principle of double effect here? If so, is it valid? (76-84, 143-45, 197-99,
387-92, 605-32, 708-12.)
14.
Chemical
and Biological Weapons Conventions:
Is Baker Spring of the Heritage Foundation correct in his suggestion
that the Chemical and Biological Weapons Conventions are essentially
meaningless, given the large number of chemical and biological weapons
possessed by States throughout the world?
Analyze the legal significance of the enforcement status of those
conventions on the issues of the lawfulness or unlawfulness of the use and
threat of use of nuclear weapons.
Is the U.S. in compliance with those Conventions, given its
"defensive" chemical and biological programs? See Makhijani Deller & John
Burroughs, eds., Rule of Power or Rule of Law?, Apex Press (2003).
15. Respective Effects of Nuclear Versus
Conventional Weapons and the Legal Significance Thereof: Does the United States today have
any actual or potential military objective that it could not achieve with
either conventional weapons it now has or ones it could develop if it expended
the necessary resources? What are the relative likely collateral effects of the
use and threat of use of contemporary nuclear weapons versus such effects of
contemporary conventional weapons? What is the legal significance of the
differences in potential effects of such nuclear and conventional weapons,
respectively? Was the United States correct in arguing to the ICJ that the effects
of conventional and nuclear weapons are comparable? To what extent is the
lawfulness of the use or threat of use of nuclear weapons dependent upon the
conventional weapons that a State has available or could potentially have had
available to meet the military need in question? Does a State have a legal
obligation under the law of armed conflict or otherwise to develop, purchase,
and maintain a sufficient supply of conventional weapons such that it will
always have such weapons available in case of military need and not be in the
position of having to use or threaten to use nuclear weapons because of not
having conventional weapons that could have been available to address the
particular military needs in question? If so, does this mean that two adversaries
may be subjected to differing legal regimes, dependent upon their relative
level of technological sophistication and financial means? (By way of analogy,
in conducting a conventional strike, is the United States generally required to
use precision-guided rather than dumb weapons, since it has the ability to take
steps to put it in a position of being able to do so?) (See articles in Andru E. Wall, Ed., Legal and Ethical Lessons of NATOÕs
Kosovo Campaign, vol. 78, International Law Studies (Naval War College,
Newport, Rhode Island 2002) addressing such questions.) (140-42, 397-401,
405-46, 367-73, 633-50.)
16.
Enforcement:
By what means may the law of armed conflict as to the use or threat of use of
nuclear weapons be enforced? By what means may legal issues as to the
lawfulness of such use or threat of use be raised? In what forums and in what
States might criminal and civil enforcement actions be brought? What criminal
charges are available to enforce the law of armed conflict? What civil claims
are available to enforce such law? Who has standing to raise issues as to the
lawfulness of the use or threat of use of nuclear weapons? What governmental
bodies or courts may apply such law or make determinations as to how it should
be applied? Most centrally, what precedent, if any, is there for the bringing
of criminal charges or civil claims based upon the threatened or attempted
violations of the law of armed conflict? What does this mean as to the
prospects of enforcement of the law of armed conflict insofar as concerns
nuclear weapons? What is the basis and validity of the Belgium legislation some
years ago that permitted the bringing of claims under international law against
present and former officials of the United States in courts of that State? (See
Comment, Belgian Waffle, Nat'l Rev., July 31, 2003, available in Lexis.)
Are there other States in which such actions might be brought? What are the
restrictions of sovereign immunity, both here and in the law of other States,
upon the bringing of criminal charges and civil claims against States and
civilian and military officials thereof asserting the unlawfulness of the use
and threat of use of nuclear weapons? Most centrally, what restraints are
imposed by the political question doctrine upon the bringing of cases in U.S.
courts relating to the enforcement of the law of armed conflict? Is the law of
armed conflict "law" to the extent there is no one and no way to
enforce it? To what extent may protestors who deface or damage military
property to protest the lawfulness the policy of deterrence raise legally
justiciable issues as to the lawfulness of the use or threat of use of nuclear
weapons? Include in your analysis information available from the LawyersÕ
Committee for Nuclear Policy (LCNP) and other available sources as to cases
which have arisen around the world involving issues as the lawfulness of the
use or threat of use of nuclear weapons (see, e.g., the LCNP web site at http://www.lcnp.org/ wcourt/Court%20cases.htm; see also,
http://www.j-n-v.org/prisoners.htm).
If one assumes that the use of nuclear weapons is unlawful, is the United
States subject to criminal or civil liability for its use of nuclear weapons
against Hiroshima and Nagasaki? What would be the legal obstacles to such a
charge or action? What are the statute of limitations constraints as to such a
charge or action? Would such a claim possibly be tolled on any basis? (See
generally, 47-48, 99-101, 327-28, 721-22; see also,
313-37; Ryuichi Shimoda et al. v. The State, 355 Hanrei Jiho 17,
translated into English at 8 Japanese Ann. Int'l L. 212 (1964) ("Shimoda"
case); Richard A. Falk, The Shimoda Case: A Legal Appraisal of the Atomic
Attacks upon Hiroshima and Nagasaki, 59 AJIL 759 (1965).)
17. Potential Liability of Foreign Government
Officials and Military Personnel and Defense Contractors and/or Officers,
Directors and Employees thereof under the Alien Tort Claim Act: If it is
assumed that the threat or use of nuclear weapons violates international law
and that the policy of deterrence followed by nuclear States constitutes the
threat of use of nuclear weapons, to what extent might legal action be brought
against present or former government officials and military personnel of a
foreign nuclear State and government contractors thereof and their officers,
directors, and employees in U.S. courts under the Alien Tort Claim Act, 28 USC
¤ 1350, based upon their participating in their StateÕs implementation of its
policy of deterrence? Anticipate the possible claims and objections and develop
and analyze the best arguments on both sides, finally setting forth your own
conclusion as to the viability of such an action. Are there similar statutes in
other States that might offer potential forums for such litigation? If other
States had comparable statutes, would the United States recognize such
statutes?
18.
International
Criminal Court and Other War Crimes Tribunals: What is the competence of
the International Criminal Court on issues as to the lawfulness of the use or
threat of use of nuclear weapons? Under what circumstances, if any, could such
claims be brought in the International Criminal Court as to the nuclear policies
or actions of the United States or any other nuclear State? To what extent
would the charters of other war crime tribunals reach violations of the law of
armed conflict through the use or threat of use of nuclear weapons? What
precedent, if any, is there for the prosecution of threatened or attempted
violations of the law of armed conflict? What does this mean as to the
prospects of enforcement of the law of armed conflict insofar as concerns
nuclear weapons? (47-8, 317-22, 336-37; see also, Elaina I. Kalivretakis, Comment, Are
Nuclear Weapons Above the Law? A Look at the International Criminal Court and
the Prohibited Weapons Category, 15 Emory IntÕl L. Rev. 683 (2001).)
19.
Obligations
under International Law of Individuals and Corporations, etc. with respect to
Non-Proliferation: Various
commentators have suggested that individuals and corporations need to be
subject to non-proliferation obligations under international law, including
under the NPT. See, e.g., George Perkovich, Jessica T. Mathews, Joseph
Cirincione, Rose Gottemoeller, and Jon B. Wolfsthal, Universal Compliance: A
Strategy for Nuclear Security 13-49, Carnegie Endowment for International Peace
(2007). Evaluate the extent to
which individuals and corporations are subject to such obligations or to other
similar or analogous obligations under international law. Review the available precedents
from decisions of war crimes tribunals as to the legal accountability of
non-governmental individuals and entities.
20. Issues as to the Legal Sufficiency of a
Possible Shareholders Derivative Action against a Corporation Participating in
the Manufacture of Nuclear Weapons Components, Assuming that the Use and Threat
of Use of Nuclear Weapons Is Unlawful and that the U.S. Policy of Nuclear
Deterrence Constitutes the Threat of Use of Such Weapons: Is the
manufacture or assembly of nuclear weapons (including delivery systems) and
their components lawful under international and other law? To what criminal and
civil liability, if any, could persons participating in such work potentially
be subject? (See generally, 47-8, 99-101, 327-28, 721-22; see
also, 313-37.) What is the potential criminal and civil liability, if
any, of corporations performing such work? What kinds of actions could be
brought against a corporation for engaging in such activities? What are the
prospects of a derivative action against a corporationÕs officers and directors
for causing the corporation to engage in manufacturing, assembling or other
activities with respect to nuclear weapons or their components? (332-33; see
generally, materials on mens rea/scienter:
94-98, 245-47, 313-37, 722-26, 753-59.) Specifically, if one establishes
á
that the
use or threat of use of nuclear weapons would be unlawful under international
law, and
á
that the
policy of nuclear deterrence of the United States is a policy tantamount to the
threat of use of nuclear weapons,
á
would it
then be unlawful (a violation of international law) for a corporation to
manufacture such weapons, including delivery vehicles and components thereof
(particularly delivery vehicles used solely12 for large scale nuclear weapons as opposed to
low yield tactical nuclear weapons? Would it be a war crime (101) or a crime
against the peace (99)?
á
If so, is
it a breach of fiduciary or other duty for an officer or director of the
corporation to permit the corporation to manufacture such weapons?
á
If so, can
a shareholder of the corporation state a legally sufficient shareholders
derivative action on behalf of the corporation against such officers and
directors?
á
Does it
matter to the legal sufficiency of such an action that the corporation has not
yet sustained damages, and indeed is reaping substantial profits from the
nuclear manufacturing activities? Or is it enough that the activities are
unlawful (like price-fixing or predatory pricing or the like) and potentially
subject the corporation to criminal and/or civil liability?13 (Are there analogous areas where corporations have
been subjected to criminal or civil liability for conducting activities that
assist foreign governments in activities that are unlawful?)
á
To what
extent does the potential viability of a derivative action along the foregoing
lines differ based upon the forum in which one might bring the action or the
StateÕs law that one might invoke?
á
With
respect to the question of in what federal or State court one might bring such
an action:
á
What are
the requirements as to the posting of a bond?
á
What other
considerations affect choice of forum?
á
Other
issues:
á
Most
centrally, could the political question doctrine successfully be invoked by the
officer and director defendants or the corporation in such an action to bar the
judicial determination of the underlying substantive issues as to the
lawfulness or not of the use or threat of use of nuclear weapons? To what
extent does the political question doctrine differ from jurisdiction to
jurisdiction? In what federal circuits (or State court systems?) would one have
the best prospects of avoiding the application of the political question
doctrine?
á
To what
extent could the federal statute substantially protecting government
contractors from civil liability14
be invoked by the corporation or the officer and director defendants to defeat
liability?
21. Reprisals: Was the United States correct in arguing before the ICJ
that the use of a weapon "may be lawful or not depending upon whether and
to what extent such use was prompted by another belligerentÕs conduct and the
nature of such conduct?" (U.S. oral argument at 69.) What is a reprisal?
Are reprisals lawful under contemporary international law? What limitations are
there on actions that may permissibly be taken in reprisal? Is the apparent
U.S. position valid that it is permitted in the course of a reprisal to attack
civilians with nuclear weapons (see, e.g., 712 n. 227)? To what extent would it be
lawful to use nuclear weapons in reprisal, following another StateÕs use of
nuclear, chemical or biological weapons? If any such use would be lawful, what
would be the limits upon such use? Would the "second use" of nuclear
weapons be lawful as a reprisal, given the enemyÕs first use? What is the
difference in the law applicable to first versus second nuclear strikes? Does
the right of reprisal potentially arise if a State, in an unlawful act of
aggression, attacks a second State? If so, in what circumstances? What are the
differences, if any, between the right of reprisal and that of self-defense?
(88-94, 150-51, 228-29, 712-16, 776-80; see also, Paula B.
McCarron & Cynthia A. Holt, A Faustian Bargain? Nuclear Weapons,
Negative Security Assurances, and Belligerent Reprisal, 25 Fletcher F.
World Aff. 203 (2001).)
22. Issues as to the Lawfulness of the
Possession of Nuclear Weapons:
What is the lawfulness of a StateÕs possession of nuclear weapons? What,
if anything, do the various analyses as to the lawfulness of the use or threat
of use of nuclear weapons mean or imply as to the lawfulness of the possession
of such weapons? What analogies can be drawn from the legal regimes as to
chemical and biological weapons? What analogies can be drawn from general
principles of law followed by civilized nations generally? Does the possession
by a State of a substance or mechanism that could cause serious injury beyond
the border of the state impose a legal obligation of care or other duty upon
the State? Whatever that duty is, is it capable of being fulfilled, when the
mechanism is a nuclear weapon? (Was the Soviet Union subject to claims by
States and persons outside that State for damages sustained as a result of
Chernobyl? Were such claims asserted? If so, how were they resolved?) To the
extent that international law or law generally permits the possession of
substances or mechanisms whose use would be unlawful, what is the rationale for
permitting such possession or for not prohibiting it? Does such rationale
withstand contemporary analysis? Review the various rules of the law of armed
conflict that prohibit the use of specific weapons. Does the law of armed
conflict also prohibit possession of such weapons? What is the legal
significance, if any, of the possession by a State of a weapon which it would
be unlawful to use? Of a weapon whose effects cannot be controlled? Would such
possession imply a threat which would bring the possession of the weapon within
the prohibition of threatening to take unlawful actions? (xvii, 10, 46-7, 114,
116-19, 199-201, 206, 772-73; see also, 608-609; pp. 56, 59, 61, 62 of U.S. oral argument before
the ICJ.)
23. The Sixteenth Opinion: In all, the
judges of the ICJ issued fifteen opinions in the Nuclear Weapons Advisory
Case. In the CourtÕs decision, it determined that it did not have
sufficient facts to determine whether low yield tactical nuclear weapons could
be used in remote areas in such a way as to not cause impermissible effects.
Write the CourtÕs further decision, analyzing that issue, based upon the
available facts which the Court either regarded itself as not having or chose
not to address. Include in your analysis the materials received by Professor
Moxley from the U.S. armed services pursuant to his request under the Freedom
of Information Act (available at http://www.nuclearweaponslaw.com/FOIA_Materials.html).
(168-171.)
24.
Issues
as to the Lawfulness of the U.S. Policy of Deterrence: Under what
circumstances, if any, is the threat to use nuclear weapons unlawful? Does the
lawfulness of the threat to use nuclear weapons depend upon the lawfulness of
the threatened use? What is a "threat?" What is the policy of
"deterrence?" Evaluate the validity of the position taken by Nauru in
its brief to the ICJ on this subject. Does the U.S. policy of deterrence
constitute a "threat" to use nuclear weapons? Is the U.S. policy of
deterrence lawful? What is the difference between the threat implicit in the
policy of deterrence and an overt threat in a particular situation, in terms of
their respective lawfulness or unlawfulness? Is there any difference, in legal
effect, between an articulated policy of deterrence, such as that of the United
States, and the deterrence implicit in a StateÕs known possession of nuclear
weapons?15 If the
policy of deterrence can prevent attacks by other States or the use by other
States of weapons of mass destruction, should such policy be lawful even if the
actual use of the weapons would be unlawful? Is such a policy lawful? What is
the significance of the U.S. acknowledgement in its oral argument before the
ICJ that the U.S. policy of nuclear deterrence involves the "use" of
such weapons (U.S. oral argument at 69)? (10, 46, 151-53, 156 n2, 202-08,
447-63, 515-20, 772-73; see also, U.S. oral argument before the
ICJ at 79; Charles J. Moxley Jr., The Unlawfulness of the United Kingdom's
Policy of Nuclear Deterrence: The Invalidity of the Scottish High Court's
Decision in Zelter, Disarmament Diplomacy No. 58, June 2001 (available at http://www.nuclearweaponslaw.com/United_Kingdom_Scots.pdf.)
25.
War
Fighting versus Deterrence versus Mutual Assured Destruction (ÒMADÓ) as US
Policy: Evaluation of the extent to which US nuclear policy is and during
the Cold War was based on war-fighting, deterrence, or MAD, and of the
differences between these approaches; analysis of related legal issues. What is the difference, if any, between
deterrence and MAD?
26. Impact of the ICJ decision in the Nuclear
Weapons Advisory Case: What has been the impact of the ICJ decision in the
Nuclear Weapons Advisory Case? What judicial decisions have been made around
the world that have been affected by the decision? What do such decisions tell
us? How, if at all, did the Nuclear Weapons Advisory Decision affect the
nuclear policy of the United States or of other nuclear States? Why? To what
extent, if at all, were the CourtÕs decision and the opinions of the various
judges affected by political considerations? Has the ICJ heard comparable cases
and, if so, does it appear to have addressed them on a legal or a political
basis? See, e.g., http://www.lcnp.org/wcourt/Court%20cases.htm; http://www.j-n-v.org/prisoners.htm
(under "U.S. nuclear resisters").
27. Developing a New Paradigm--A Lawful
Nuclear Policy for the United States for the Post Post Cold War Era: Given
that much of the traditional analysis as to the lawfulness or unlawfulness of
the use or threat of use of nuclear weapons has grown out of the evaluation of
the strategic milieu during the Cold War, what new considerations should be
brought to bear on this question in our contemporary strategic milieu? What are
the differences between the current milieu and that of the Cold War and what
are the implications of such differences? What is the balance between the benefits
of our current policy of deterrence in terms of deterring the types of
adversaries we presently face and the costs of that policy in terms of
legitimizing the use and threat of use of weapons of mass destruction
("WMD") and fostering proliferation and the overall WMD regime? What
is the role, if any, of nuclear weapons today? Is it fair to say that nuclear
weapons have themselves become our greatest security threat--or do such weapons
even today have a significant role to play in our defense? Under what
circumstances, if any, would it make sense for the United States to use or
threaten to use nuclear weapons in our contemporary environment? What is the
lawfulness of such uses or threats of use of nuclear weapons? Is it the case
today that even a limited use of nuclear weapons by the United States, in the
circumstances in which it would likely use such weapons, would likely escalate
into a widescale nuclear exchange (see 585-98), and, if so, what is the legal
significance of such fact? Would a limited use of nuclear weapons by the United
States likely precipitate the use of chemical and/or biological weapons (see
605-32)? If so, what is
the significance, if any, of such likelihood to the lawfulness of such use of
nuclear weapons? Most centrally, analyze the legal considerations applicable to
the policy paradigm you identify or propose. (741-42.) What are the implications of the NPT on
the issue?
28. Use of Nuclear Weapons for Self-Defense:
Under what circumstances, if any, may nuclear weapons be used for self-defense?
What are the implications of the UN Charter on this? Does the right of
self-defense trump the law of armed conflict? Do the restraints of the law of
armed conflict apply to the actions of a State when it is defending its very
existence? If so, is there any basis to expect compliance in such
circumstances? If we cannot expect compliance in such circumstances, what does
this mean as to the seriousness of this body of law? Does it even qualify as
"law?" Most centrally, did any State, in its written or oral
arguments to the ICJ, contend that the right of self-defense trumped such rules
of the law of armed conflict as the rules of necessity, proportionality, and
discrimination? If so, what authority, if any, was given for such position, and
what is the validity of such authority? Have any other decisions of the ICJ or
of any other tribunal addressed the scope of a StateÕs right of self-defense?
If so, what did the decisions decide and on what basis--and what is the
significance of such prior decision(s) in interpreting what the ICJ said on the
subject in the Nuclear Weapons Advisory Case? (174-184, 347-51, 717-21.)
29. View of Other States as to the Lawfulness
of the Use or Threat of Use of Nuclear Weapons: For anyone having a facility in a language other than
English: Based on available materials in the language of your familiarity, to
what extent is the use or threat of use of nuclear weapons viewed as lawful or
unlawful? How have such legal considerations impacted upon the nuclear policies
of the relevant State(s)?
30.
Nuclear
Weapons Proliferation and Its Relationship to International Law Governing the
Use or Threat of Use of Nuclear Weapons: What nuclear weapons proliferation
is taking place today? What is the
lawfulness of such proliferation?
What is the impact of international law and nuclear weapons policy on
such proliferation?
31.
Legal
Issues Raised by IranÕs Nuclear Program: Is Iran developing nuclear
weapons? If so, what are the legal
and policy issues applicable to its doing so? What is the relationship between a stateÕs developing a
nuclear power capability and nuclear weapons? If Iran is developing a nuclear weapons capability,
would it be lawful for the United States to use nuclear weapons to destroy or
impede that capability?
32.
Legal
Issues Raised by North KoreaÕs Nuclear Weapons Program: What is the extent
of the North Korean nuclear weapons program? What are the legal and policy issues applicable to North
KoreaÕs development of nuclear weapons?
What is the relationship between a stateÕs developing a nuclear power
capability and nuclear weapons?
Would it be lawful for the United States to use nuclear weapons to
destroy or impede North KoreaÕs nuclear weapons program?
33.
Nuclear
Non-Proliferation Treaty Issues: Analysis of the NPT and its future in
light of the United StatesÕ current policies as to nuclear weapons, including
issues as to the viability of the maintenance by nuclear weapons states of
their nuclear weapons capabilities vis-a-vis the obligation of
non-nuclear weapons states to refrain from obtaining nuclear weapons; analysis
of the viability of keeping fissile materials out of the hands of non-nuclear
weapons states while nuclear weapons states do not appear to be headed towards
the abolition of nuclear weapons; analysis of related legal issues.
34.
Missile
defense: analysis of the current status, policy and practical significance
of missile defense and of legal issues relating thereto (see 2006 National Security
Strategy (NSS) at 18).
35.
Preemptive
Use of Force: analysis of the lawfulness or not of the use of force in
advance of an imminent threat, with particular emphasis on the use of nuclear
weapons in such a situation (see NSS at 18).
36.
US
Nuclear Primacy: Evaluation of current US nuclear weapons programs and
policy. Consideration of
whether the US now seeks nuclear primacy vis-ˆ-vis the nuclear weapons of other
states and of whether, if so, this amounts to a commitment by the US to
maintain a first-strike capability as against potential nuclear opponents. Evaluation of whether US nuclear
primacy is the way out of the dark risks of the nuclear weapons world for the us? Evaluation of the legal ramifications of the current US
posture as to nuclear weapons?
What is the relationship between nuclear hegemony and national security?
37.
Soviet
Conventional Superiority During Cold War: Evaluation of the extent to which
the Soviet Union actually had conventional weapons superiority during the Cold
War and of the extent to which US nuclear policies during that period were
based on an assumed Soviet superiority in conventional weapons; analysis of
related legal issues. To what
extent, if any, was there during the Cold War and is there now a legal obligation
on the part of the United States to exert best efforts to maintain sufficient
conventional capability to meet its foreseeable military needs so as not ever
to be in the position of having to resort to the use of nuclear weapons?
38. Issues
as to Nuclear Weapons Testing: Analysis of the results and effects of
testing of nuclear weapons by the US and other States during the Cold War;
analysis of related legal issues.
39. Evaluation
of the Significance to US Nuclear Policy of Applicable Issues as to the
Lawfulness of the Use or Threat of Use of Nuclear Weapons: What, if any,
impact do legal considerations have on US nuclear policy?
40. Analysis of Legal Issues
Applicable to the UKÕs Recent Review of Its Nuclear Weapons Program: Review of legal issues applicable to
the matters discussed in The Secretary of State for Defence and The Secretary
of State for Foreign and Commonwealth Affairs, The Future of the United
KingdomÕs Nuclear Deterrent, by Command of Her Majesty 5-8, 13-14, (2006),
available at http://www.mod.uk/NR/rdonlyres/AC00DD79-76D6-4FE3-91A1-6A56B03C092F/0/DefenceWhitePaper2006_Cm6994.pdf. Review of the legal analysis set forth
in Michael Fordham QC, Naina Patel, Proposed Replacement of Trident, Joint
Opinion for Peacerights 5-23, available at http://www.nuclearinfo.org/documents/Joint_Opinion.pdf.
Review of the legal analysis set
forth in Rebecca Johnson, Nicola Butler, Stephen Pullinger, Worse
than Irrelevant, British Nuclear Arms in the 21st Century, The Acronym
Institute for Disarmament Diplomacy (2006), available at http://www.acronym.org.uk/uk/Worse_than_Irrelevant.pdf.
41.
Duty to
Pursue Disarmament in Good Faith Under NPT Article VI: As confirmed in the
ICJ's Nuclear Weapons Advisory Decision, the Nuclear Non-Proliferation Treaty
(NPT) imposes a duty on nuclear weapons states that are signatories to the NPT
to pursue nuclear disarmament in good faith. Our class readings show that commentators are in sharp
disagreement as to whether the U.S. is complying with this obligation. This is a major issue in terms of
the likely viability of continuing efforts by the U.S. and other States to
limit nuclear proliferation.
Analyze the extent, if any, to which the U.S. is in compliance with its
obligations under Art. VI. Evaluate
the probable outcome of a case that might be brought to the ICJ to evaluate the
compliance of the U.S. and other nuclear States with their NPT obligations in
this regard.
42.
Efforts
by India and Pakistan to Establish Protections against Nuclear War: Review the wide array of precautionary
and preventative agreements and arrangements between the U.S. and the Soviet
Union during the Cold War to deal with potential military problems and prevent
accidental nuclear war and analyze the extent, if any, to which India and
Pakistan have made similar or analogous arrangements, etc.. Analyze the legal significance of
what India and/or Pakistan have or have not done in this regard. What nuclear doctrines have India and
Pakistan announced or do they reportedly follow? What is the lawfulness or not of those doctrines?
43.
U.S.
Exports of Nuclear Weapons and Placement of Such Weapons Outside the US:
Significance of U.S. Export Regulations in this Connection: To what extent does the U.S. transfer
nuclear weapons or place nuclear weapons outside the U.S.? To what extent do U.S. export
regulations permit the export of materials usable in nuclear weapons or their
delivery system? Analyze the legal
significance of same. Relatedly,
do the draft U.S./India agreement described in the Blitz report and the final
form of that agreement comply with the U.S.'s obligations under the NPT? See Weapons of Mass Destruction
Commission, final report, "Weapons of Terror: Freeing the World of
Nuclear, Biological, and Chemical Arms" 81-82 (2006), available at http://www.wmdcommission.org/files/Weapons_of_Terror.pdf.
44.
Analysis
of the Extent to which Positive and Negative Security Assurance are Legally
Binding: We have seen in the
readings various discussions of positive and negative security assurances. Analyze the extent to which such
assurances are or are not binding.
What is the appropriate role of such assurances in U.S. nuclear policy
and practice?
45.
Analysis
of the UN General Assembly's 2005 International Convention for the Suppression
of Acts of Nuclear Terrorism: See Weapons of Mass Destruction Commission,
final report, "Weapons of Terror: Freeing the World of Nuclear,
Biological, and Chemical Arms" (2006) 84-84, available at http://www.wmdcommission.org/files/Weapons_of_Terror.pdf. Analyze the potential impact of this
Convention and its legal significance with respect to the issue of the
lawfulness or not of the use or threat of use of nuclear weapons.
46.
Analysis
of the 1991 Commitment Made by the U.S. and Russia to Eliminate or Limit
Specific Types of Non-Strategic Nuclear Weapons, such as Demolition Munitions,
Artillery Shells and Warheads for Short-Range Ballistic Missiles: See
descriptions of such commitments in Weapons of Mass Destruction Commission,
final report, "Weapons of Terror: Freeing the World of Nuclear,
Biological, and Chemical Arms" (2006) e.g., 98-99, available at http://www.wmdcommission.org/files/Weapons_of_Terror.pdf. Analyze the extent to which such
commitments were binding under any theory of international law and the extent
to which the U.S. and Russia have complied with such commitments, particularly
in light of the tactical nuclear weapons that the U.S. ostensibly still retains
in Western Europe and any such weapons that Russia currently maintains outside
of Russia. Analyze the legal
significance of the applicable facts in this regard. Is Baker Spring correct that, if the U.S. did not maintain
its tactical nuclear weapons in the territory of various of its Western
European allies, such allies would fell the need to develop such a nuclear
capability themselves? See Baker
Spring, Weapons of Mass Destruction: Current Nuclear Proliferation Challenges,
The Heritage Foundation, Heritage Lectures, October 4, 2006, available at http://www.heritage.org/Research/NationalSecurity/upload/hl_968.pdf.
47.
Space
Weapons and Related Equipment: Investigate U.S. plans to develop a further
military capability in outer space and the legal significance of same.
48.
Relationship
of Nuclear Power and Nuclear Weapons, Problems and Solutions: Advisability of nuclear power in the
context of worldwide energy needs, global warming, and other considerations;
relationship of nuclear power to nuclear weapons; exploration of ways to
minimize the risk of nuclear weapons development in states with nuclear power
programs; analysis of the status of nuclear power programs under the Nuclear
Non-Proliferation Treaty and consideration of possible amendments of the NPT or
other approaches to address any problems/dangers in this regard.
49.
Analysis
of the International Atomic Energy Commission: What is it? How does it operate? What is its role and
effectiveness? What have been its
successes and failures? What, if
any, changes are advisable with respect to the IAEA? What are the causes of any
problems it has and of any failures it has sustained? What is the impact of applicable law as to nuclear weapons
on the IAEAÕs mandate, activities, etc.?
U.S.
Military Manuals and Similar Publications Relating to Nuclear Weapons and the
Law of Armed Conflict
á
Joint
Chiefs of Staff, Joint Pub. No. 3-12, Doctrine for Joint Nuclear Operations
(1995), available at http://www.nuclearweaponslaw.com/nukeops3_12_1995.pdf
(rescinded)
á
Joint
Chiefs of Staff, Joint Pub. No. 3-12, Doctrine for Joint Nuclear Operations
(Draft ÒFinal Coordination (2)Ó to Joint Pub 3-12, 2005),5 available
at http://www.wslfweb.org/docs/doctrine/3_12fc2.pdf
(rescinded)
á
Joint
Chiefs of Staff, Joint Pub. No. 3-12.1, Doctrine for Joint Theater Nuclear
Operations (1996), available at
http://www.wslfweb.org/docs/doctrine/theaternukeops.pdf
(update forthcoming)
á
Office of
the President, National Security Strategy (2010), available at http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf
á
U.S. DepÕt
of the Air Force, Air Force Operations and the Law (2009), available at http://www.afjag.af.mil/shared/media/document/AFD-100510-059.pdf
á
U.S. DepÕt
of the Air Force, Doctrine Doc.
2-12, Nuclear Operations
(2009), available at
http://www.fas.org/irp/doddir/usaf/afdd2-12.pdf
á
U.S. DepÕt
of the Air Force, Doctrine Doc.
2-1.9, Targeting (2006), available
at http://www.fas.org/irp/doddir/usaf/afdd2-1.9.pdf
á
U.S.
Department of the Air Force, Doctrine Doc. 2-1.2, Strategic Attack (1998), available at http://www.dtic.mil/doctrine/jel/service_pubs/afd2_1_2.pdf
á
U.S. DepÕt
of the Air Force, Doctrine Doc. 2-1.5, Nuclear Operations (1998) , available
at www.wslfweb.org/docs/doctrine/afdoctrine98.pdf
(superseded)
á
U.S. DepÕt
of the Air Force, The Military Commander and the Law (2009), available at http://www.afjag.af.mil/shared/media/document/AFD-091026-025.pdf
á
U.S. DepÕt
of the Air Force, Pamphlet No. 110-31, International Law--The Conduct of
Armed Conflict and Air Operations (1976) (rescinded)
á
U.S. DepÕt
of the Air Force, Pamphlet No. 110-34, Commander's Handbook on the Law of
Armed Conflict (1980) (rescinded)
á
U.S. DepÕt
of the Army, Field Manual 100-30, Nuclear Operations (1996), available
at http://www.fas.org/irp/doddir/army/fm100-30.pdf
á
IntÕl & Operational Law DepÕt, U.S. DepÕt
of the Army, Law of War Deskbook
(2010), available at
http://www.loc.gov/rr/frd/Military_Law/pdf/LOW-Deskbook.pdf
á
IntÕl & Operational Law DepÕt, U.S. DepÕt
of the Army, Operational Law Handbook (2010), available at https://www.jagcnet.army.mil/8525751D0057F1B6/0/9AA89AFB204D01BE8525776100451636/$file/Operational%20Law%20Handbook%20%282010%29.pdf
á
U.S. DepÕt
of Defense, Nuclear Posture Review Report (2010), available at http://www.defense.gov/npr/docs/2010%20nuclear%20posture%20review%20report.pdf
á
U.S.
DepÕt of Energy, U.S. DepÕt of Defense, National Security and Nuclear
Weapons in the 21st Century (2008), available at http://www.google.com/url?sa=t&source=web&cd=1&ved=0CBIQFjAA&url=http%3A%2F%2Fwww.defense.gov%2Fnews%2Fnuclearweaponspolicy.pdf&ei=3JJYTK6_Eor_nAfd8t2hCQ&usg=AFQjCNE82ib6pCKUBwUGEp-pFPBKgrREUA
www.defense.gov/news/nuclearweaponspolicy.pdf
á
U.S. DepÕt of the Navy, NWP 1-14M, The CommanderÕs Handbook on the
Law of Naval Operations (2007), available
at http://www.usnwc.edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/1-14M_(Jul_2007)_(NWP)
á
U.S. DepÕt of the Navy, Annotated Supplement to the CommanderÕs
Handbook on the Law of Naval Operation (1999), available at https://www.usnwc.edu/Research---Gaming/International-Law/RightsideLinks/Studies-Series/documents/Naval-War-College-vol-73.aspx
á
á
U.S. DepÕt
of the Navy, Annotated Supplement to the Commander's Handbook on the Law of
Naval Operations (1997), available at http://www.nuclearweaponslaw.com/Annotated_Supplement_to_the_Commanders_Handbook_All.pdf
(Chapter 10, Nuclear, Chemical, and Biological Weapons, available at www.nuclearweaponslaw.com/Annotated_Supplement_to_the_Commanders_Handbook.pdf)
(superseded)
á
U.S.
Department of the Navy, Naval Warfare Pub. 1-14M, The Commander's Handbook
on the Law of Naval Operations (superseded)
á
U.S. DepÕt
of the Army, FM 27-10, The Law of Land Warfare (1956) with Change No. 1
(15 July 1976), available at
http://faculty.ed.umuc.edu/~nstanton/FM27-10.htm
Books
Addressing Nuclear Weapons Issues16
á
Peter R.
Beckman, et al., Nuclear Weapons, Nuclear States, and Terrorism (4th ed.
2007);
á
Ian
Brownlie, International Law and the Use of Force by States 262-64, 373
(1991);
á
John
Burroughs, The (Il)legality of Threat or Use of Nuclear Weapons, (1997);
á
Joseph
Cirincione, Jon B. Wolfsthal, and Miriam Rajkumar, Deadly Arsenals: Nuclear,
Biological, and Chemical Threats (2d ed. 2005);
á
Rule of
Power or Rule of Law? (Nicole Deller, Makhijani Deller & John
Burroughs, eds., 2003);
á
Myres S.
McDougal and Florentino P. Feliciano, Law and Minimum World Public Order
23-24, 32, 77, 244, 356, 388-90, 472-74 (1967);
á
Elliot L.
Meyrowitz, Prohibition of Nuclear Weapons (1990);
á
Adam
Roberts & Richard Guelff, Documents on the Laws of War, (3d ed.
2000);
á
Stephen I.
Schwartz, Atomic Audit: The
Costs and Consequences of U.S. Nuclear Weapons since 1940 (1998);
á
Nagendra
Singh & Edward McWhinney, Nuclear Weapons and Contemporary International
Law (2d ed. 1989);
á
Legal
and Ethical Lessons of NATOÕs Kosovo Campaign, I (Andru E. Wall ed., 2002);
á
D.G.
Weeramantry, Nuclear Weapons and Scientific Responsibility (Kluwer Law
International 1999);
á
Burns
H.Weston, Richard A. Falk, & Hilary Charlesworth, Supplement of Basic
Documents in International Law and World Order (4th ed., 2006); and
á
Burns H.
Weston, Richard A. Falk, & Hilary Charlesworth, International Law and
World Order (4th ed., 2006).
ENDNOTES
1 Students are also invited to propose their own topics. The paper topics set forth above for
various specific classes are illustrative. The topics actually selected by students will be
spread out throughout approximately the second half of the course in a way that
makes sense in light of the assigned readings for such classes.
2 The reference materials are set forth to
facilitate access by interested students to such materials. Reference will be made to some of these
materials in class, but students will not be expected to have read them. Many of these materials will be useful
to students in writing their papers.
3 Legality of the Threat or Use of
Nuclear Weapons, International Court of Justice, Advisory Opinion, General
List at pt. VI, 35-36, No. 95 (July 8, 1996). (The decision of the Court and
all but five of the fifteen individual opinions are available at 35 I.L.M. 809.
The remaining five, the declarations of Judges Bedjaoui, Herczegh and Bravo and
the individual opinions of Judges Guillaume and Ranjeva, appear at 35 I.L.M.
1343. Such I.L.M. materials are available on Lexis.) References herein to
briefs and transcripts of oral arguments are to such materials in the Nuclear
Weapons Advisory Case unless otherwise noted.
4 The topics are designed to address
pivotal issues as to the lawfulness of the use or threat of use of nuclear
weapons. In some instances, applicable facts and law that frame the core issues
are set forth in the description of potential topics.
5 This document, which is available on the
website of Western States Legal Foundation (ÒWSLFÓ), is described by WSLF as
follows:
Draft
Doctrine for Joint Nuclear Operations, Joint Publication 3-12, Final
Coordination (2) 15 March 2005
This
document, along with the comments from the various commands on the draft, were
downloaded from the Joint Chiefs of Staff doctrine public web site. The site
was shut down on April 7, 2005 and this and other doctrine documents are not
available there, at least for the moment. Although this document still is in
draft and hence cannot be cited as official policy, it provides an indication
of how top military officials are thinking about nuclear weapons use.
See
http://www.wslfweb.org/nukes/foia.htm
It is
instructive to compare this draft revision of Joint Chiefs of StaffÕs Doctrine
for Joint Nuclear Operations with that original document (available at http://www.nuclearweaponslaw.com/nukeop3_12_1995.pdf). This Draft Doctrine was never finalized
or formally issued, although it is ostensibly regarded by at least some
knowledgeable commentators as representing official US doctrine. See, e.g.,
Baker Spring, CongressÕs Critical Role in the Reliable Replacement Warhead
(RRW) Program, Heritage Foundation, Executive Memorandum No. 1026, May 11,
2007, available at http://www.heritage.org/Research/NationalSecurity/upload/em_1026.pdf.
6 The United States argued before the ICJ
in the Nuclear Weapons Advisory case, "It is a fundamental principle of
international law that restrictions on States--particularly those affecting the
conduct of armed conflict--cannot be presumed; they must, rather, be found in
conventional law specifically accepted by States, or in customary law generally
accepted as such by the community of nations." For this rule, the United
States cited and quoted Nicaragua v. United States. Does that case
support the U.S. position? What did the ICJ in that case mean in saying that a
State is only bound by rules accepted by the State "by treaty or
otherwise?" (See
U.S. oral argument
before the ICJ at 60) (emphasis supplied).
7 References are to some pages in Nuclear
Weapons and International Law in the Post Cold War World where the topic or
related topics are discussed.
8 The United States argued before the ICJ
in the Nuclear Weapons Advisory Case, "It is a fundamental principle of
international law that restrictions on States--particularly those affecting the
conduct of armed conflict--cannot be presumed; they must, rather, be found in
conventional law specifically accepted by States, or in customary law generally
accepted as such by the community of nations." For this characterization
of the law, the United States cited and quoted Nicaragua v. United States.
Does that case support the U.S. position? What did the ICJ in that case mean in
saying that a State is only bound by rules accepted by the State "by
treaty or otherwise?"
(see U.S. oral
argument before the ICJ at 60) (emphasis supplied).
9 The United States argued before the ICJ
in the Nuclear Weapons Advisory Case, "It is a fundamental principle of
international law that restrictions on States--particularly those affecting the
conduct of armed conflict--cannot be presumed; they must, rather, be found in
conventional law specifically accepted by States, or in customary law generally
accepted as such by the community of nations." For this rule, the United
States cited and quoted Nicaragua v. United States. Does that case
support the U.S. position? What did the ICJ in that case mean in saying that a
State is only bound by rules accepted by the State "by treaty or
otherwise?" (see
U.S. oral argument
before the ICJ at 60) (emphasis supplied).
10 There has been much written in the media
on this subject in connection with recent military operations of the United
States. Why is the United States involving lawyers so heavily in target
selection? Is it obligated to do so? Has a norm developed or is it developing
requiring such care? Are other States exercising similar concern with the
lawfulness of potential targets?
11 As to the distinctions between
"attributed" or "accountable" nuclear weapons and weapons
not characterized as "accountable" and hence not counted, see 502 n.
7.
12 Some delivery systems and component
parts are used for both nuclear and conventional weapons.
13 See, e.g., Diamond v.
Oreamuno, 24 N.Y.2d 494, 248 N.E.2d 910, 301 N.Y.S.2d 78 (1969); Biondi
v. Beekman Hill House Apt., Corp., 257 A.D.2d 76, 692 N.Y.S.2d 304 (1st
Dep't 1999); Amfesco Industries, Inc. v. Greenblatt, 172 A.D.2d 261, 568
N.Y.S.2d 593 (1st Dep't 1991).
14 See Defense Production Act, 50 U.S.C. Appx.
Sec.2157 (1994) (partly repealed; Susan Rousier, Note and Comment, Hercules
v. United States: Government Contractors Beware, 19 Whittier L. Rev. 215
(1997)); Boyle v. United Techs. Corp., 487 U.S. 500, 101 L. Ed. 2d 442,
108 S. Ct. 2510 (1988); In re "Agent Orange" Product Liability
Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984); Hercules Inc. v. United
States, 25 Cl. Ct. 616 (1992)).
15 What does the fact that Israel is a
known nuclear power but does not generally acknowledge its possession of such
weapons tell us on this score? See e.g., http://www.fas.org/nuke/guide/israel/nuke/index.html.
16 The library will have these books on
reserve.