Course Description, Syllabus, Topics for Papers, and Reference Sources

 

NUCLEAR WEAPONS & INTERNATIONALLAW

 

Professor Charles J. Moxley, Jr.

Fordham University School of Law

Fall 2014

 

This seminar will address issues as to the lawfulness or not under international law of the use and threat of use of nuclear weapons. The course will focus upon such matters as the following: applicable rules of international law, as articulated by the United States; the United States’position as to the application of such rules to nuclear weapons; the Obama Administration’s Nuclear Posture Review and other changes to U.S. nuclear policy and practice; the 1996 advisory decision of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons; relevantjudicial decisions subsequent to the ICJ decision; and generally accepted principles of international law applicable to the analysis. The course will also focus upon the facts that are central to the legal analysis, including the characteristics and effects of nuclear weapons, U.S. policy as to the circumstances in which it might use nuclear weapons, the theory and implications of nuclear deterrence, and identifiable risk factors associatedwith the nuclear weapons regime. The course will encompass contemporary proliferation issues, including as to Iran and North Korea. This will be a paper course and students will be required to present their papers in class. The papers may be used to satisfy the writing requirement. The primary text will be Charles J. Moxley, Jr., Nuclear Weapons and International Law in the Post Cold War World (Austin & Winfield, University Press of America, 2000) and related Supplemental Materials.

 

Credits: 2

 

Prof.

Day/Time

Room

Moxley

Monday / 6:00 PM to 7:50 PM

4-06

 

         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 issues of the lawfulness of the use and threat of use of nuclear weapons, so that, when we get to the point of applying the law to the facts, we will have covered both elements.

 

         This will very much be a discussion course. Students will be expected to participate actively and should bring the assigned readings to class.

 

         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 will start the presentations in approximately the seventh class, although the papers need not be turned in until the end of the examination period. Students are expected to circulate outlines or drafts of their papers a week in advance of their oral presentation to facilitate discussion of the matters presented. Such outlines/drafts will not be graded and may be in rough form, particularly for students presenting early in the course.

 

            In writing their papers, students are expected to take the analysis to the next step. The objective is not to write up the information and analysis set forth in the text and assigned readings, but rather to assimilate such materials, identify the open interesting issues –– and address them.

 

         Papers should be approximately twenty-five and no more than forty pages. This applies to papers generally and to those submitted for writing credit.

 

         Grading will be as follows: class participation (30%); presentation and “defense” of the paper (20%); and the paper (50%). Students may potentially augment their class participation grade by serving as a discussion leader with respect to assigned readings or by researching discrete issues that arise in class discussions.

 

         Starting with approximately the seventh class we will primarily be doing student presentations of papers and discussion of the presentations. However, the substantive readings will continue. Students will be expected to draw upon the continued readings both in their papers and in their discussion of other students’ papers.

 

         Please note that legal analysis should make up at least half of every paper and related presentation. A paper may concentrate on one or more legal issues of interest, but should provide at least an overview of the universe of legal issues that may potentially be applicable to the particular topic. As always in legal analysis, issue recognition is at the heart of the matter.

 

            In light of the nature of modern communication in the courtroom and elsewhere, students are encouraged in presenting their papers to use computer visuals and the like.

 

            The Supplemental Materials (supplementing the text) appear in two Volumes:

 

           Volume I: Supplemental Materials Organized by Manual or Other Source; and

 

            Volume II: Supplemental Materials Organized by Topic – and are available here.


Syllabus

 

Class 1 (8/25/14):

Š        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

Š        Readings

Š        Hans M. Kristensen, “Status of World Nuclear Forces, “Federation of American Scientists (April 2014), available at http://fas.org/issues/nuclear-weapons/status-world-nuclear-forces/  (skim)

Š        George P. Schultz, William J. Perry, Henry Kissinger and Sam Nunn, “Next Steps in Reducing Nuclear Risks: The Pace of Nonproliferation Work Today Doesn’t Match the Urgency of the Threat,,” Wall Street Journal op ed piece, March 5, 2013, available at http://online.wsj.com/news/articles/SB10001424127887324338604578325912939001772

Š        Michaela Dodge, “U.S. Nuclear Weapons Policy: After Ukraine, Time to Reassess Strategic Posture” (Heritage Foundation Issue Brief #4183 on Arms Control and Nonproliferation, March 27, 2014), available at http://www.heritage.org/research/reports/2014/03/us-nuclear-weapons-policy-after-ukraine-time-to-reassess-strategic-posture

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

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

Š        Testimony of Mr.Takashi Hiraoka, Mayor of Hiroshima, and Mr. Iccho Itoh, Mayor of Nagasaki, before the International Court of Justice, 7 November 1995 (22-39), available at http://www.nuclearweaponslaw.com/Hiroshima_Nagasaki.doc  (skim)

Š        Optional: Images and Videos relating to Nuclear Weapons Prepared by Fordham StudentZachary Novetsky: http://www.nuclearweaponslaw.com/NuclearWeapons Slideshow_Moxley.pdf

Š        Reference Materials:2

Š        Status of World Nuclear Forces, Federation of American Scientists, available at http://www.fas.org/programs/ssp/nukes/nuclearweapons/nukestatus.html.

Š        Baker Spring, NuclearWeapons Modernization Priorities after New START, backgrounder #2573 (June27, 2011), available at http://www.heritage.org/research/reports/2011/06/nuclear-weapons-modernization-priorities-after-new-start.

Š        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.

Š        A Global Law to Ban Nuclear Weapons, Middle Powers Initiative Briefing Papers (June 2011), available at http://www.middlepowers.org/pubs/Global_Law.pdf.

Š        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.

Š        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.

Š        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.

Š        Steven Pifer, The United States, NATO’s Strategic Concept, and Nuclear Issues, Nuclear policy Paper No. 6 (April 2011), available at http://tacticalnuclearweapons.ifsh.de/pdf/Nuclear_Policy_Paper_No6.pdf.

Š        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.

Š        Charles D. Ferguson,“The Long Road to Zero – Overcoming the Obstacles to a Nuclear-Free World,” Foreign Affairs, January/February 2010, pp. 86-94, available at: http://www.nuclearweaponslaw.com/TheLong Road to Zero.pdf

Š        Graham Allison, “Nuclear Disorder: Surveying Atomic Threats,” Foreign Affairs, January/February 2010, pp. 74-85, available at: http://www.nuclearweaponslaw.com/NuclearDisorder.pdf

Š        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

Š        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

Š        “Nuclear Powers Emerge as U.S. Stockpile Shrinks,” The Heritage Foundation, created on May 25,2010, available at: http://www.heritage.org/Multimedia/InfoGraphic/Nuclear-Powers-Emerge-as-US-Stockpile-Shrinks

Š        Federation ofAmerican Scientists, Status of World Nuclear Forces, available at http://www.fas.org/programs/ssp/nukes/nuclearweapons/nukestatus.html.

Š        Jack Spencer, Learning to Love the Bomb, Heritage Foundation (August 25, 2003), available at http://www.heritage.org/Press/Commentary/ed082603b.cfm.

Š        Letter by President Barack Obama to the 2009 Carnegie Nonproliferation Conference, April 6, 2009, available at http://www.carnegieendowment.org/files/2009npc_obama.pdf.

Š        Middle PowersInitiative, 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.

Š     America’s 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)

Š        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/.

Š        U.S. Nuclear Weapons Policy, Council on Foreign Relations Press (April 2009), available for downloading at http://www.cfr.org/publication/19226.

Š        AbolishingNuclear 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.

Š        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.

Š        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.

Š        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.

Š        Kim R. Holmes, Ph.D., James Jay Carafano, Ph.D., Peter Brookes, and Baker Spring, What Americans Need to Know About Missile Defense: We’re Not There Yet, The Heritage Foundation Web Memo 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

Š        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.

Š        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.

Š        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.

Š        Contagious 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.

Š        Arms Control with Russia: Senators Should Provide Their Advice to the Obama Administration, The Heritage Foundation Web Memo 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.

Š    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.

Š        Baker Spring, StrategicPosture Commission’s Report Provides Necessary Guidance to Congress, The Heritage Foundation Web Memo No. 2442, May 14, 2009, available at http://origin.heritage.org/Research/Reports/2009/05/Strategic-Posture-Commissions-Report-Provides-Necessary-Guidance-to-Congress.

Š        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.

Š        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.

Š        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.)

Š        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.)

Š        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.

Š        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.

Š        Hans Kristensen, WhiteHouse 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.

Š        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.

Š        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.

Š        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.

Š        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.

Š        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.

Š        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.

Š        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.

Š        Hans Kristensen, Status of World Nuclear Forces, 2007, The Nuclear Information Project (March 29,2007), available at http://www.nukestrat.com/nukestatus.htm.

Š        Hans Kristensen, USAir 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).

Š        Mikhail Gorbachev, TheNuclear Threat, January 31, 2007, available at http://www.wagingpeace.org/articles/2007/01/31_gorbachev_nuclearthreat.htm.

Š        Dr. Mohamed El Baradei, 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.

Š        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.

Š1      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.

Š        BBC News, US Adopts Tough New Space Policy, news.bbc.co.uk (October 18, 2006), available at www.nuclearweaponslaw.com/USAdoptsToughNewSpacePolicy.pdf.

Š        Robert M. Sapolsky, A Natural History of Peace, 85 Foreign Affairs 104-120 (January/February2006), available at www.nuclearweaponslaw.com/Natural_History_of_Peace.pdf.

Š        John Burroughs, The Global Threat of Nuclear Weapons (September 10, 2004), available at http://www.lcnp.org/disarmament/GlobalThreatNW.htm.

Š        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.

Š        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

Š        Report of the    Defense Science Board Task Force on Future Strategic Strike Forces, February 2004, available at http://www.nuclearweaponslaw.com/fssf.pdf.

Š        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.

Š        Jack Spencer, Congres sis Wrong to Defund Strategic Programs, Heritage Foundation WebMemo # 618 (December 8, 2004), available at http://www.heritage.org/Research/NationalSecurity/wm618.cfm.

Š        Jack Spencer and Kathy Gudgel, The 2005 Quadrennial Defense Review: The Military Industrial Base, Heritage Foundation Web Memo #761 (June 14, 2005), available at http://www.heritage.org/Research/NationalSecurity/wm761.cfm.

Š        Bruce T. Goodwin, Frederick A. Tarantino, and Joan B. Woodward, Sustaining The NuclearEnterprise – A New Approach, (May 20, 2005), available at http://www.nuclearweaponslaw.com/sustainingtheenterprise.pdf.

Š        Convention Approach

Š        Proposed Convention on the Prohibition of the Development, Testing, Production, Stockpiling, Transfer, Use and Threat of Use of Nuclear Weapons and on Their Elimination, Lawyers’ Committee on Nuclear Policy, April, 1997, available at http://www.lcnp.org/mnwc/convention.htm.

Š        Statement of Purpose and Summary of the MNWC, Lawyers’ Committee on Nuclear Policy, available at http://www.lcnp.org/mnwc/mnwcsumm.htm

Š        Commentary on the MNWC (Lawyers’ Committee on Nuclear Policy), available at http://www.lcnp.org/mnwc/mnwccomm.htm.

Š        See also the additional materials collected at http://www.lcnp.org/mnwc/index.htm.

Š        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 oralargument.

 

Class 2 (9/08/14):

Š        Focus: 2010 U.S.Nuclear Policy Review and Related Strategy

Š        Readings

Š Vancouver Declaration, February 11, 2011, “Law’s Imperative for the Urgent Achievement of a Nuclear-Weapon-Free World,” available at http://www.thesimonsfoundation.ca/sites/all/files/Vancouver%20Declaration_3.pdf

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

Š        Department of Defense, “Report on Nuclear Employment Strategy of the United States” (2013), available at http://www.defense.gov/pubs/reporttoCongressonUSNuclearEmploymentStrategy_Section491.pdf

Š        Reference Materials:

Š        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.

Š        Statement of the Lawyers’ 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.

Š        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.

Š        Nuclear CrisisPoints: Iran, North Korea, Syria and Pakistan, Carnegie International Nonproliferation Conference, Carnegie Endowment For International Peace, April6, 2009, available at http://www.carnegieendowment.org/files/npc_crisis_points3.pdf.

Š        After the Khan Network: What Works, What Doesn’t 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.

Š        Godfried van Benthemvan 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.

Š        Baker Spring, Concerns on Proposed Reduction of U.S. Nuclear Stockpile to 1,000 Weapons, The Heritage Foundation Web Memo 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.

Š        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.

Š        Middle Powers Initiative, Visible Intent: NATO’s Responsibility to Nuclear Disarmament (BriefingPaper) January 2008, available at http://www.middlepowers.org/pubs/NATO_brief_2008.pdf.

Š        Hans M. Kristensen, WhiteHouse Guidance Led to New Nuclear Strike Plans Against Proliferators, DocumentShows, 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.

Š        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.

Š        Baker Spring, Omnibus Eliminates Funding for the Reliable Replacement Warhead Program, Heritage Web Memo 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.

Š        2006 National Security Strategy of the United States 19-24, available at www.strategicstudiesinstitute.army.mil/pdffiles/nss.pdf.

Š        U.S. Department of Defense, Strategic Deterrence Joint Operating Concept 1-8, February 2004, available at http://www.wslfweb.org/nukes/foia.htm.

Š        Jack Spencer and Baker Spring, The Advantages of Expanding the Nuclear Navy, Heritage Web Memo No. 1693, Nov.5, 2007, available at http://www.heritage.org/Research/Reports/2007/11/The-Advantages-of-Expanding-the-Nuclear-Navy.

Š        Michael Spies, Controlling the Nuclear Fuel Cycle, Disarmament Times, Spring 2008, p. 1, available at http://www.lcnp.org/energy/DTspring08.pdf.

Š        Jack Spencer, The Nuclear Renaissance: Ten Principles to Guide U.S. Policy, Heritage Web Memo No. 1640, Sep. 26, 2007, available at http://www.heritage.org/Research/Reports/2007/09/The-Nuclear-Renaissance-Ten-Principles-to-Guide-US-Policy.

Š        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):

Š        Introduction, available at http://www.wmdreport.org/pages/NuclearDisorder-introduction.pdf.

Š        Executive Summary, available at http://www.wmdreport.org/pages/NuclearDisorder-summary.pdf.

Š        Recommendations, available at http://www.wmdreport.org/pages/NuclearDisorder-recommendations.pdf.

Š        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.

Š        Baker Spring, Congress’s 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.

Š        The Secretary of State for Defence and The Secretary of State for Foreign and Commonwealth Affairs, The Future of the United Kingdom’s 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.

Š        Michael Fordham QC, Naina Patel, Proposed Replacement of Trident, Joint Opinion for Peacerights, available at http://www.nuclearinfo.org/documents/Joint_Opinion.pdf.

Š        Rebecca Johnson, Nicola Butler, Stephen Pullinger, Worse than Irrelevant, British NuclearArms in the 21st Century, The Acronym Institute for Disarmament Diplomacy (2006), available at http://www.acronym.org.uk/uk/Worse_than_Irrelevant.pdf.

Š        The UK Trident System, The Acronym Institute (2007), available at http://www.acronym.org.uk/uk/trident.htm.

Š        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;

Š        Joint Chiefs of Staff, Joint Pub 3-12, Doctrine for Joint Nuclear Operations (DRAFT Final Coordination (2) 15 March 2005), available at http://www.wslfweb.org/docs/doctrine/3_12fc2.pdf.5

Š        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:

Š        Brief re GeneralAssembly request:

Š        available at ICJwebsite: http://www.icj-cij.org/docket/files/95/8700.pdf.

Š        Brief re World HealthOrganization request:

Š        at ICJ website: http://www.icj-cij.org/docket/files/93/8770.pdf.

Š        New Zealand, Iranian, British, and Russian briefs before the ICJ:

Š        New Zealand: available at http://www.icj-cij.org/docket/files/95/8710.pdf.

Š        Iran: available at http://www.icj-cij.org/docket/files/95/8678.pdf.

Š        United Kingdom and Northern Ireland: available at http://www.icj-cij.org/docket/files/95/8802.pdf.

Š        Russian: available at http://www.icj-cij.org/docket/files/95/8796.pdf.

Š        British and Russian oral arguments before the ICJ:

Š        British: available at (British oral argument begins at p. 20) http://www.icj-cij.org/docket/files/95/5947.pdf.

Š        Russian: available at http://www.icj-cij.org/docket/files/95/5939.pdf.(Russian oral argument begins at p. 39).

 

Class 3 (9/15/14):

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

Š        Alan Robock and Owen Brian Toon, “Self-Assured Destruction: The Climate Impacts of Nuclear War,” Bulletin of the Atomic Scientists (2012), PDF to be circulated

Š        Chatham House Report, “Too Close for Comfort: Cases of Near Nuclear Use and Options for Policy” (2014), PDF to be circulated   (skim)

Š        Optional: information about pending nuclear-weapons related litigation: http://lcnp.org/RMI/index.html

         *  Reference Materials:

 

Class 4 (9/22/14)

Š        Focus: U.S.nuclear policy; rules of the law of armed conflict applicable to the lawfulnessof the use and threat of use of nuclear weapons, as articulated by the United States

Š        Readings

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

Š        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.

Š        Reference Materials:

Š        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

Š        Thom Shanker, U.S.Air Force Chiefs Face Firing After Nuclear Inquiry, Intl Herald Tribune Americas, June 52008, http://www.iht.com/articles/2008/06/05/america/pent.php.

Š        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.

Š        Acronym Institute, NATO and Nuclear Weapons: NATO Summit, Bucharest, 2 - 4 April 2008, http://www.acronym.org.uk/nato/index.htm.

Š        Baker Spring, President Reagan’s Strategic Defense Initiative Proposal 25 Years Later: A Better Path Chosen, Heritage Web Memo No. 1840, Mar. 10, 2008, available at http://www.heritage.org/Research/BallisticMIssileDefense/wm1841.cfm.

Š        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.

Š        Jacques E. C. Hymans, North Korea’s Nuclear Neurosis, Bulletin of the Atomic Scientists 45(May/June 2007), available at www.nuclearweaponslaw.com/BulletinAtomicSciNKoreaNeurosis.pdf.

Š        Keir A. Leiber and Daryl G. Press, Superiority Complex, Atlantic Monthly (July/August2007), available at www.nuclearweaponslaw.com/Superiority_Complex_article.pdf.

Š        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:

Š        Part I: http://www.gsinstitute.org/gsi/docs/SNS_Testimony_PartI.pdf.

Š        Part II: http://www.gsinstitute.org/gsi/docs/SNS_Testimony_PartII.pdf.

Š        Part III: http://www.gsinstitute.org/gsi/docs/SNS_Testimony_PartIII.pdf.

Š        Thirteen Practical Steps: Legal or Political?, Peter Weiss, John Burroughs, Michael Spies, May 2005, available at http://www.lcnp.org/disarmament/npt/13stepspaper.htm.

Š        Presentations to the NPT Review Conference on Article VI Compliance, Civil Society (2005),available at http://www.lcnp.org/disarmament/npt/ArtVIcompliance.pdf.

Š        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 (9/29/14):

Š        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

Š        Readings

Š        74-120 and related Supplemental Materials

Š        Belfer Center, “Traanscending Mutual Deterrence in the U.S.-Russian Relationship) (2013), available at http://belfercenter.ksg.harvard.edu/files/MAD%20English.pdf  

Š        Reference Materials

Š        Ivo Daalder and Jan odal, 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.

Š        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.

Š        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.

Š        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.

Š        Baker Spring and Kathy Gudgel, The Role of Nuclear Weapons in the 21st Century, Heritage Foundation Web memo #721 (April 13, 2005) available at http://www.heritage.org/Research/NationalSecurity/wm721.cfm.

Š         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 (10/6/14):

Š        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

Š        Readings

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

Š        The ICJ’s decision in the Nuclear Weapons Advisory Case, available in Lexis at 35 I.L.M. 809, 809-832(http://www.icj-cij.org/docket/files/95/7495.pdf.

 

Class 7 (10/20/14):

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

Š        Readings

Š        174-208 and related Supplemental Materials

Š        ICJ Decision: Dissenting opinion of Judge Weeramantry, 35 I.L.M. 880, in the Nuclear Weapons Advisory Case (This cite works in Lexis. Otherwise, try from http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4)

 

Class 8 (10/27/14):

Š        Focus: the ICJdecision in the Nuclear Weapons Advisory Case; student presentations

Š         Readings

Š        208-250 and related Supplemental Materials

Š        ICJ decision: the separate opinions of various Judges:

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

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

o       dissenting opinion of Judge Koroma, 35 I.L.M. 925. (These cites work in Lexis. The opinions are alsoavailable at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4,although some there are in French only.)

 

Class 9 (11/3/14):

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

Š        Readings

Š        ICJ decision: the separate opinions of various Judges:

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

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

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

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

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

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

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

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

o       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.

Š     Reference Materials:

Š        2002 National Security Strategy of the United States, available at http://www.globalsecurity.org/military/library/policy/national/nss-020920.pdf.

Š        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 (11/10/14):

Š        Focus: Generallya 0ccepted principles of law applicable to the issue of the lawfulness of the use or threat of use of nuclear weapons; student presentations

Š         Readings

Š        251-311 and related Supplemental Materials

Š        447-63 and related Supplemental Materials

 

Class 11 (11/17/14):

Š        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

Š        Readings

Š        313-373 and related Supplemental Materials

Š        465-81 and related Supplemental Materials

 

Class 12 (11/24/14):

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

Š        Readings

Š        515-553 and related Supplemental Materials

Š        585-632 and related Supplemental Materials

Š     Reference Materials:

Š        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.

Š        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

Š        briefs of New Zealanda nd Iran before the ICJ:

o       New Zealand: available at http://www.icj-cij.org/docket/files/95/8710.pdf.

o       Iran: available at http://www.icj-cij.org/docket/files/95/8678.pdf.

Š        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 (12/1/14):

Š        Focus: Technical capabilities of the United States’ modern high tech conventional weapons; unlawfulness of the use of nuclear weapons under rules of international law recognized by the United States; additional ICJ individual opinion; student presentations

Š        Readings

Š        633-708 and related Supplemental Materials

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

 


Topics for Papers

 

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 lawor both?6 Is it agenerally 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 ofmany States of the policy of nuclear deterrence? Identify as many actual casesand 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 State’s 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 one’s adversary or its allies or other States and of the effects of one’s 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 ofuse 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 agenerally accepted principle of law? (See discussion at 654-57.) Does thecharacterization 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?  erwise in violation of customary international law? To what extent, if at all, is a State’s 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 one’s adversary or its allies or other States and of the effects of one’s 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 problem sinvolved 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 State’s 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 thisr ule, must one include in the analysis an evaluation of the potential effects of possible retaliatory responses by one’s adversary or its allies or other States and of the effects of one’s 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.         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 seunlawful, 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 States’ 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 oft he 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.)

 

5.         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.)

 

6.         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.)

 

7.         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:

Š        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 States’ 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?

Š        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?

Š        Is it a fair characterization of the U.S. position before the ICJ that the U.S. argued thatthe 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 useof nuclear weapons?

Š        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?

Š        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?

Š        Would the UnitedStates’ use and threat of use of nuclear weapons be per se unlawful under the rules of necessity,p roportionality, and discrimination if the following facts are assumed:

o       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,

o       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,

o       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?

o       In other words, cant he United States be bound by the application of a general rule it recognizeswhen it does not accept the validity of the application of that rule in aspecific 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?

Š        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?

Š        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 suchprobabilities?

Š        What is the range ofpotential effects that must be considered in evaluating whether a particularuse of a nuclear weapon would violate the law of armed conflict? Is itsufficient to evaluate the lawfulness of a potential use of nuclear weaponsbased only upon the direct effects, or must the broader effects (such as the effectsof resultant escalation and the long term effects of the resultant radiationupon human, animal and plant life) be taken into consideration?

Š        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?

Š        Is it a fair characterization to say that a State’s use of a nuclear weapon would not comply with the rule of necessity if the use would likely cause such extensive effectsas to boomerang on the State and result in its sustaining more damage than theoriginal target was worth?

 

8.         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 past 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. orala rgument 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 can’t 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.)

 

9.         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 Lawyers’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 acharge 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 AtomicAttacks upon Hiroshima and Nagasaki, 59 AJIL 759 (1965).)

 

10.       Potential Liability of Foreign Government Officials and Military Personnel and Defense Contractors and/or Officers, Directors and Employees thereof under the AlienTort 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 theAlien Tort Claim Act, 28 USC § 1350, based upon their participating in their State’s 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?

 

11.       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, AreNuclear Weapons Above the Law? A Look at the International Criminal Court andthe Prohibited Weapons Category, 15 Emory Int’l L. Rev. 683 (2001).)

 

`           12.       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 individualsand entities.

 

            13.       Issuesas 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 corporation’s 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 mensrea/scienter: 94-98, 245-47, 313-37, 722-26, 753-59.) Specifically, if one establishes

Š        that the use or threat of use of nuclear weapons would be unlawful under international law, and

Š        that the policy of nuclear deterrence of the United States is a policy tantamount to the threat of use of nuclear weapons,

Š        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)?

Š        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?

Š        If so, can a shareholder of the corporation state a legally sufficient shareholders derivative action on behalf of the corporation against such officers anddirectors?

Š        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?)

Š        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 State’s law that one might invoke?

Š        With respect to thequestion of in what federal or State court one might bring such an action:

o       What are the requirements as to the posting of a bond?

o       What other considerations affect choice of forum?

Š        Other issues:

o       Most centrally, could the political question doctrine successfully be invoked by the officer anddirector defendants or the corporation in such an action to bar the judicial determination of the underlying substantive issues as to the lawfulness or notof 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?

Š        To what extent could the federal statute substantially protecting government contractors from civilliability14 be invoked by the corporation or the officer and director defendants to defeat liability?

 

            14.       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 belligerent’s 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 State’s 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 enemy’s 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 & CynthiaA. Holt, A Faustian Bargain? Nuclear Weapons, Negative Security Assurances,and Belligerent Reprisal, 25 Fletcher F. World Aff. 203 (2001).)

 

15.       Issues as to the Lawfulness of the Possession of Nuclear Weapons: What is the lawfulness of a State’s 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; seealso, 608-609; pp. 56,59, 61, 62 of U.S. oral argument before the ICJ.)

 

16.       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 overtthreat 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 deterrenceimplicit in a State’s 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.)

 

17.       Developinga New Paradigm--A Lawful Nuclear Policy for the United States for the Post PostCold 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 ofweapons 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?

 

18.       Missile defense: analysis of the current status, policy and practical significance of missile defense and of legal issues relating thereto.

 

19.       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.

 

20.       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 viabilityof 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. See the ICJ’srecent decision in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), available at http://www.icj-cij.org/docket/files/144/17064.pdf.

 

21.       CyberSecurity: Analysis of the current red hot issue as to the extent of the vulnerability of the nuclear weapons systems of the United States and of othernuclear powers to computer hacking and the like.

 

Reference Sources

 

U.S.Military Manuals and Similar Publications Relating to Nuclear Weapons and theLaw of Armed Conflict

 

Š        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)

 

Š        Joint Chiefs of Staff, Joint Pub. No. 3-12, Doctrine for Joint Nuclear Operations (Draft “Final Coordination (2)” to Joint Pub 3-12, 2005),5 available at http://www.wslfweb.org/docs/doctrine/3_12fc2.pdf (rescinded)

 

Š        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)

 

 

 

Š        Office of the President, National Security Strategy (2010), available at http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf

 

Š        U.S. Dep’t 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

 

Š        U.S. Dep’t of the Air Force, Doctrine Doc. 2-12, Nuclear Operations (2009), available at http://www.fas.org/irp/doddir/usaf/afdd2-12.pdf

 

Š        U.S. Dep’t of the Air Force, Doctrine Doc. 2-1.9, Targeting (2006), available athttp://www.fas.org/irp/doddir/usaf/afdd2-1.9.pdf

 

Š     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

 

Š        U.S. Dep’t of the Air Force, Doctrine Doc. 2-1.5, Nuclear Operations (1998) , available at www.wslfweb.org/docs/doctrine/afdoctrine98.pdf (superseded)

 

Š        U.S. Dep’t 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

 

Š        U.S. Dep’t of the Air Force, Pamphlet No. 110-31, International Law--The Conduct of Armed Conflictand Air Operations (1976) (rescinded)

 

Š        U.S. Dep’t of the Air Force, Pamphlet No. 110-34, Commander’s Handbook on the Law of Armed Conflict (1980) (rescinded)

 

Š        U.S. Dep’t of the Army, Field Manual 100-30, Nuclear Operations (1996), available at http://www.fas.org/irp/doddir/army/fm100-30.pdf

 

Š        Int’l & Operational Law Dep’t, U.S. Dep’t of the Army, Law of War Deskbook (2010), available at http://www.loc.gov/rr/frd/Military_Law/pdf/LOW-Deskbook.pdf

 

Š        Int’l & Operational Law Dep’t, U.S. Dep’t 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

 

Š        U.S. Dep’t of Defense, Nuclear Posture Review Report (2010), available at http://www.defense.gov/npr/docs/2010%20nuclear%20posture%20review%20report.pdf

 

Š        U.S. Dep’t of Energy, U.S. Dep’t of Defense, National Security and NuclearWeapons 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-pFPBKgrREUAwww.defense.gov/news/nuclearweaponspolicy.pdf

 

Š        U.S.Dep’t of the Navy, NWP 1-14M, The Commander’s 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)

 

Š        U.S.Dep’t of the Navy, Annotated Supplement to the Commander’s 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

 

Š        U.S. Dep’t of theNavy, 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)

 

Š        U.S. Department of the Navy, Naval Warfare Pub. 1-14M, The Commander’s Handbook on the Law of Naval Operations (superseded)

 

Š        U.S. Dep’t of theArmy, FM 27-10, The Law of Land Warfare (1956) with Change No. 1 (15July 1976), available at http://faculty.ed.umuc.edu/~nstanton/FM27-10.htm

 

BooksAddressing Nuclear Weapons Issues16

 

Š        Peter R. Beckman, et al., Nuclear Weapons, Nuclear States, and Terrorism (4th ed. 2007);

 

Š        Ian Brownlie, International Law and the Use of Force by States 262-64, 373 (1991);

 

Š        John Burroughs, The (Il)legality of Threat or Use of Nuclear Weapons, (1997);

 

Š        Joseph Cirincione, Jon B. Wolfsthal, and Miriam Rajkumar, Deadly Arsenals: Nuclear, Biological,and Chemical Threats (2d ed. 2005);

 

Š        Rule of Power or Rule of Law? (Nicole Deller, Makhijani Deller & John Burroughs, eds.,2003);

 

Š        Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order 23-24, 32,77, 244, 356, 388-90, 472-74 (1967);

 

Š        Elliot L. Meyrowitz, Prohibition of Nuclear Weapons (1990);

 

Š        Stephen I. Schwartz, Atomic Audit: The Costs and Consequences of U.S. Nuclear Weapons since 1940(1998);

 

Š        Nagendra Singh & Edward McWhinney, Nuclear Weapons and Contemporary International Law (2ded. 1989);

 

Š        D.G. Weeramantry, Nuclear Weapons and Scientific Responsibility (Kluwer Law International 1999);

 

Š        Burns H.Weston, Richard A. Falk, & Hilary Charlesworth, Supplement of Basic Documents in International Law and World Order (4th ed., 2006); and

 

Š        Burns H. Weston,Richard A. Falk, & Hilary Charlesworth, International Law and World Order (4th ed., 2006).

 

OtherReference Materials

 

 




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, GeneralList 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 issuesare set forth in the description of potential topics.

 

5 This document, which is available on the website of Western States Legal Foundation (“WSLF”), is described by WSLF asfollows:

 

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 Staff’s 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, Congress’s Critical Rolein 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 th econduct of armed conflict – cannot be presumed; they must, rather, be found inconventional law specifically accepted by States, or in customary law generallya ccepted as such by the community of nations.” For this rule, the UnitedS tates 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 inconventional 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. oralargument 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 inconventional 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 argumentbefore 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 targets election? Is it obligated to do so? Has a norm developed or is it developing requiring such care? Are other States exercising similar concern with thel awfulness 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); Biondiv. Beekman Hill House Apt., Corp., 257 A.D.2d 76, 692 N.Y.S.2d 304 (1stDep’t 1999); Amfesco Industries, Inc. v. Greenblatt, 172 A.D.2d 261, 568N.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, Herculesv. 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 LiabilityLitigation, 597 F. Supp. 740 (E.D.N.Y. 1984); Hercules Inc. v. UnitedStates, 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 onreserve.
 

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