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Course Description, Syllabus, Topics
for Papers, and Reference Sources |
NUCLEAR WEAPONS & INTERNATIONAL LAW
Professor
Charles J. Moxley, Jr.
Fordham
University School of Law
Fall
2007
This seminar will address issues as to the lawfulness under international law
of the use or threat of use of nuclear weapons. The course will focus upon such
matters as the following: applicable rules of international law, as articulated
by the United States; the United States’ position as to the application of such
rules to nuclear weapons; the 1996 advisory decision of the International Court
of Justice on the Legality of the Threat or Use of Nuclear Weapons; relevant
judicial decisions subsequent to the ICJ decision; and generally accepted
principles of international law applicable to the analysis. The course will
also focus upon the facts that are central to the legal analysis, including the
characteristics and effects of nuclear weapons, U.S. policy as to the
circumstances in which it might use nuclear weapons, the theory and
implications of nuclear deterrence, and identifiable risk factors as to the
potential effects of the use of nuclear weapons. The course will encompass contemporary proliferation issues,
including as to North Korea and Iran.
This will be a paper course and students will be required to present
their papers in class. The papers may be used to satisfy the writing
requirement. The primary text will be Charles J. Moxley, Jr., Nuclear Weapons and International Law in the
Post Cold War World (Austin
& Winfield, University Press of America, 2000).
Credits: 2
|
Prof. |
Day/Time |
Room |
Course No. |
Moxley |
Monday / 6:00 PM to 7:45 PM |
215 |
ITGL0322051 |
Sections: Syllabus, Topics for Papers, Reference Sources. This
Syllabus may be found at nuclearweaponslaw.com.
Following are the class assignments. I have tried to balance the legal and
factual materials relating to the issue of the lawfulness of the use or threat
of use of nuclear weapons, so that, when we get to the point of applying the
law to the facts, we will have covered both elements.
This will very much be a discussion course. Students will be expected to
participate actively and should bring the text book and 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 fifteen minutes and to answer questions from the
professor and other students and participate in discussion of their topics for
another approximately fifteen minutes. We start the presentations in
approximately the eighth class, although the papers need not be turned in until
the fourteenth class. Students are expected to circulate outlines or drafts of
their papers a week in advance of their oral presentation to facilitate
discussion of the matters presented. Such outlines/drafts will not be graded
and may be in rough form, particularly in the case of students presenting early
in the course.
In
drafting 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 pages.
Grading will be as follows: class participation (30%); presentation and "defense" of the paper (20%); and the paper (50%). Students may contribute to their class participation grade by serving as a discussion leader with respect to assigned readings or by researching discrete issues that arise in class discussions.
Starting with approximately the eighth class we will primarily be doing student presentations of papers and discussion of the presentations. However, the substantive readings will continue. Students will be expected to draw upon the continued readings both in their papers and in their discussion of other 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 following syllabus
includes various materials available on the internet.
Syllabus
Class
1 (8/27/07):
·
Focus: Consideration of the strategic
role of nuclear weapons; general introduction to law and facts relevant to the
questions of whether the use and threat
of use of nuclear weapons are lawful under the law of armed conflict
·
Readings
·
Jack Spencer, Learning to Love the Bomb,
Heritage Foundation (August 25, 2003), available at http://www.heritage.org/Press/Commentary/ed082603b.cfm.
·
1-11 (assignments, unless otherwise noted, are
to Moxley, Nuclear Weapons and
International Law in the Post Cold War World)
·
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.comeclean.org.uk/articles.php?articleID=278.
·
Weapons of Mass Destruction Commission, final
report, “Weapons of Terror: Freeing the World of Nuclear, Biological, and
Chemical Arms” (2006) 60-109, available at http://www.wmdcommission.org/files/Weapons_of_Terror.pdf.
·
Baker Spring, Weapons of Mass Destruction:
Current Nuclear Proliferation Challenges, The Heritage Foundation, Heritage
Lectures, October 4, 2006, available at http://www.heritage.org/Research/NationalSecurity/upload/hl_968.pdf.
·
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.
·
Reference Materials:2
·
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.
·
Kristensen, Hans, Status of World Nuclear
Forces, 2007, The Nuclear Information Project (March 29, 2007), available
at http://www.nukestrat.com/nukestatus.htm.
·
Kristensen, Hans, US Air Force Decides to
Retire Advanced Cruise Missile, Strategic Security Blog, Federation of
American Scientists (March 7, 2007), available at http://www.fas.org/blog/ssp/2007/03/
(bottom of page).
·
Mikhail Gorbachev, The Nuclear Threat, January 31, 2007,
available at http://www.wagingpeace.org/articles/2007/01/31_gorbachev_nuclearthreat.htm.
·
Dr. Mohamed
ElBaradei, Preventing Nuclear Catastrophe: Where Do We Go
From Here?, International
Conference on the Prevention of Nuclear Catastrophe,
IAEA, Luxembourg, May 24 2007, available at http://www.iaea.org/NewsCenter/Statements/2007/ebsp2007n006.html.
·
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.
·
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.
·
BBC News, US Adopts Tough New Space Policy,
news.bbc.co.uk (October 18, 2006), available at www.nuclearweaponslaw.com/USAdoptsToughNewSpacePolicy.pdf.
·
Robert M. Sapolsky, A Natural History of
Peace, 85 Foreign Affairs 104-120 (January/February 2006), available at www.nuclearweaponslaw.com/Natural_History_of_Peace.pdf.
·
John Burroughs, The Global Threat of Nuclear
Weapons (September 10, 2004), available at http://www.lcnp.org/disarmament/GlobalThreatNW.htm.
·
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.
·
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
·
Report of the Defense Science Board Task Force
on Future Strategic Strike Forces, February 2004,
available at http://www.nuclearweaponslaw.com/fssf.pdf.
·
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.
·
Jack Spencer, Congress is Wrong to Defund
Strategic Programs, Heritage Foundation WebMemo # 618 (December 8, 2004),
available at http://www.heritage.org/Research/NationalSecurity/wm618.cfm.
·
Jack Spencer and Kathy Gudgel, The 2005
Quadrennial Defense Review: The Military Industrial Base, Heritage
Foundation WebMemo #761 (June 14, 2005), available at http://www.heritage.org/Research/NationalSecurity/wm761.cfm.
·
Bruce T. Goodwin, Frederick A. Tarantino, and
Joan B. Woodward, Sustaining The Nuclear Enterprise – A New Approach,
(May 20, 2005), available at http://www.nuclearweaponslaw.com/sustainingtheenterprise.pdf.
·
Convention Approach
·
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.
·
Statement of Purpose and Summary of the MNWC,
Lawyers’ Committee on Nuclear Policy, available at http://www.lcnp.org/mnwc/mnwcsumm.htm
·
Commentary on the MNWC (Lawyers’
Committee on Nuclear Policy), available at http://www.lcnp.org/mnwc/mnwccomm.htm.
·
See also
the additional materials collected at http://www.lcnp.org/mnwc/index.htm.
·
Transcript of U.S. oral argument before the
International Court of Justice in the "Nuclear Weapons Advisory Case"3 available on the ICJ website at www.icj-cij.org. (Direct hotlink: available
at http://www.icj-cij.org/docket/files/95/5947.pdf.)
The U.S. oral argument begins on page 55. Extra
link to US oral argument.
Class
2 (9/10/07):
·
Focus: U.S. nuclear policy; detailed
discussion of the topics for student papers (set forth below) to refine them,
put them in context, evaluate their significance, and match up students and
topics (Students should come prepared with their top two or three preferences
as to a topic to pursue)4
·
Readings
·
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):
·
Introduction, available at http://www.wmdreport.org/pages/NuclearDisorder-introduction.pdf.
·
Executive Summary, available at http://www.wmdreport.org/pages/NuclearDisorder-summary.pdf.
·
Recommendations, available at http://www.wmdreport.org/pages/NuclearDisorder-recommendations.pdf.
·
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.
·
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.
·
2006 National Security Strategy of the
United States 19-24, available at www.whitehouse.gov/nsc/nss/2006/nss2006.pdf.
·
U.S. Department of Defense, Strategic
Deterrence Joint Operating Concept 1-8, February 2004, available at http://www.wslfweb.org/nukes/foia.htm.
·
Reference Materials:
·
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.
·
Michael Fordham QC, Naina Patel, Proposed
Replacement of Trident, Joint Opinion for Peacerights, available at http://www.nuclearinfo.org/documents/Joint_Opinion.pdf.
·
Rebecca Johnson, Nicola Butler, Stephen
Pullinger, Worse than Irrelevant, British Nuclear Arms in the 21st Century,
The Acronym Institute for Disarmament Diplomacy (2006), available at http://www.acronym.org.uk/uk/Worse_than_Irrelevant.pdf.
·
The UK Trident System,
The Acronym Institute (2007), available at http://www.acronym.org.uk/uk/trident.htm.
·
Joint Chiefs of Staff, Joint Pub 3-12, Doctrine
for Joint Nuclear Operations (15 December 1995), available at http://www.nuclearweaponslaw.com/nukeops3_12_1995.pdf;
·
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
·
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:
·
Brief re General Assembly request:
·
available at ICJ website: http://www.icj-cij.org/docket/files/95/8700.pdf.
·
Brief re World Health Organization request:
·
at ICJ website: http://www.icj-cij.org/docket/files/93/8770.pdf.
·
New Zealand, Iranian, British, and Russian
briefs before the ICJ:
·
New Zealand: available at http://www.icj-cij.org/docket/files/95/8710.pdf.
·
Iran: available at http://www.icj-cij.org/docket/files/95/8678.pdf.
·
United Kingdom and Northern Ireland: available
at http://www.icj-cij.org/docket/files/95/8802.pdf.
·
Russian: available at http://www.icj-cij.org/docket/files/95/8796.pdf.
·
British and Russian oral arguments before the
ICJ:
·
British: available at (British oral argument
begins at p. 20) http://www.icj-cij.org/docket/files/95/5947.pdf.
·
Russian: available at http://www.icj-cij.org/docket/files/95/5939.pdf.
(Russian oral argument begins at p. 39).
Class
3 (9/17/07):
·
Focus: U.S. nuclear policy; rules of the
law of armed conflict applicable to the lawfulness of the use and threat of use
of nuclear weapons, as articulated by the United States
·
Readings
·
15-74
·
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.
·
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.
·
Reference Materials:
·
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.
·
Keir A. Leiber and
Daryl G. Press, Superiority Complex, Atlantic Monthly (July/August
2007), available at www.nuclearweaponslaw.com/Superiority_Complex_article.pdf.
·
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:
·
Part I: http://www.gsinstitute.org/gsi/docs/SNS_Testimony_PartI.pdf.
·
Part II: http://www.gsinstitute.org/gsi/docs/SNS_Testimony_PartII.pdf.
·
Part III: http://www.gsinstitute.org/gsi/docs/SNS_Testimony_PartIII.pdf.
·
Thirteen
Practical Steps: Legal or Political?, Peter Weiss, John
Burroughs, Michael Spies, May 2005, available
at http://www.lcnp.org/disarmament/npt/13stepspaper.htm.
·
Presentations
to the NPT Review Conference on Article VI Compliance, Civil Society (2005), available at http://www.lcnp.org/disarmament/npt/ArtVIcompliance.pdf.
·
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
4 (9/24/07):
·
Focus: Rules of the law of armed conflict
applicable to the lawfulness of the use and threat of use of nuclear weapons,
as articulated and applied by the United States
·
Readings
·
74-120
·
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.
·
Baker Spring and Kathy Gudgel, The Role of
Nuclear Weapons in the 21st Century, Heritage Foundation Webmemo #721
(April 13, 2005) available at http://www.heritage.org/Research/NationalSecurity/wm721.cfm.
·
Reference Materials
·
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
5 (10/1/07):
·
Focus: Rules of the law of armed conflict
applicable to the lawfulness of the use and threat of use of nuclear weapons,
as applied by the United States; the ICJ decision in the Nuclear Weapons
Advisory Case.
·
Readings
·
120-153; 155-174
·
The ICJ's decision in the Nuclear Weapons
Advisory Case, available in Lexis at 35 I.L.M. 809, 809-832 (http://www.icj-cij.org/docket/files/95/7495.pdf.
(We will start discussing the ICJ
decision in Class 6).
Class
6 (10/9/07):
·
Focus: The ICJ decision in the Nuclear
Weapons Advisory Case
·
Readings
·
174-208
·
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
7 (10/15/07):
·
Focus: the ICJ decision in the Nuclear
Weapons Advisory Case
·
Readings
·
208-250
·
ICJ decision: the separate opinions of various
Judges:
·
dissenting opinion of Vice-President Schwebel,
35 I.L.M. 836,
·
dissenting opinion of Judge Higgens, 35 I.L.M.
934, and
·
dissenting opinion of Judge Koroma, 35 I.L.M.
925. (These cites work in Lexis. The opinions are also available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4,
although some there are in French only.)
Class
8 (10/22/07):
·
Focus: the ICJ decision in the Nuclear
Weapons Advisory Case; student presentations
·
Readings
·
ICJ decision: the separate opinions of various
Judges:
·
individual opinion of Judge Guillaume, 35 I.L.M.
1351,
·
declaration of President Bedjaoui, 35 I.L.M.
1345,
·
declaration Judge Herczegh, 35 I.L.M. 1348,
·
dissenting opinion of Judge Shahabudeen, 35
I.L.M. 861,
·
declaration of Judge Shi, 35 I.L.M. 832,
·
separate opinion of Judge Fleischhauer, 35
I.L.M. 834,
·
declaration of Judge Vereshchetin, 35 I.L.M.
833,
·
declaration of Judge Bravo, 35 I.L.M. 1349, and
·
individual opinion of Judge Ranjeva, 35 I.L.M.
1354.
These cites work in
Lexis. The opinions are also available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4,
although some there are in French only.
·
Reference Materials:
·
2002 National Security Strategy of the
United States, available at http://www.whitehouse.gov/
nsc/nss.pdf.
·
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.
·
Papers No. 1, 2, and 3: (The listing of classes
in which the various topics will be reached and the topics listed are
approximate and subject to what topics students pick this semester.)
·
Paper No. 1: Rule of Necessity
·
Paper No. 2: Rule of Proportionality
·
Paper No. 3: Rule of Discrimination
Class
9 (10/29/07):
·
Focus: Generally accepted principles of
law applicable to the issue of the lawfulness of the use or threat of use of
nuclear weapons; student presentations
·
Readings
·
251-311
·
447-63
·
Papers No. 4, 5, and 6:
·
Paper No. 4: Role of Law of Armed Conflict in
Target Selection
·
Paper No. 5: Law of Neutrality
·
Paper No. 6: Bases for a Per Se Rule--Level of Certainty as to the Likelihood of
Impermissible Effects that Must Be Present to Render the Use or Threat of Use
of Nuclear Weapons Unlawful
Class
10 (11/5/07):
·
Focus: Generally accepted principles of
law applicable to the issue of the lawfulness of the use or threat of use of
nuclear weapons; risk factors inherent in U.S. operational policy as to nuclear
weapons in the post World War II era; student presentations
·
Readings
·
313-373
·
465-81
·
Papers No. 7, 8, and 9:
·
Paper No. 7: Risk Analysis
·
Paper No. 8: Mens
Rea/Scienter
·
Paper No. 9: The Case for the Lawfulness of
the Use and Threat of Use of Nuclear Weapons
Class
11 (11/12/07):
·
Focus: Risk factors inherent in the
policy of deterrence; risks of the limited use of nuclear weapons; risks of the
United States’ operational nuclear policy; risks of chemical and biological
weapons; student presentations
·
Readings
·
515-553
·
585-632
·
Reference Materials:
·
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
·
briefs of New Zealand and Iran before the ICJ:
·
New Zealand: available at http://www.icj-cij.org/docket/files/95/8710.pdf.
·
Iran: available at http://www.icj-cij.org/docket/files/95/8678.pdf.
·
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.
·
Papers No. 10, 11, and 12:
·
Paper No. 10: Lawfulness of the Arsenal of
Nuclear Weapons Maintained by the United States
·
Paper No. 11: Mininukes
·
Paper No. 12: Comparison of the Legal Regimes
Applicable Respectively to Nuclear, Chemical and Biological Weapons and
Analysis of the Reasons for the Differences
Class
12 (11/19/07):
·
Focus: Technical capabilities of the
United States’ modern high tech conventional weapons; unlawfulness of the use
of nuclear weapons under rules of international law recognized by the United
States; additional ICJ individual opinion; student presentations
·
Readings
·
633-708
·
ICJ decision: the dissenting opinion of ICJ
Judge Oda, 35 I.L.M. at 843
·
Papers No. 13, 14, and 15:
·
Paper No. 13: Respective Effects of Nuclear
Versus Conventional Weapons and the Legal Significance Thereof
·
Paper No. 14: Enforcement
·
Paper No. 15: Issues as to the Legal Sufficiency
of a Possible Shareholders Derivative Action against a Corporation
Participating in the Manufacture of Nuclear Weapons Components, Assuming that
the Use and Threat of Use of Nuclear Weapons Is Unlawful and that the U.S.
Policy of Nuclear Deterrence Constitutes the Threat of Use of Such Weapons
Class
13 (11/26/07):
·
Focus: Unlawfulness of the use of nuclear
weapons under rules of international law recognized by the United States and
under additional generally recognized principles of law; student presentations
·
Readings
·
708-780
·
Papers No. 16, 17, and 18:
·
Paper No. 16: Reprisals
·
Paper No. 17: Issues as to the Lawfulness of
the Possession of Nuclear Weapons
·
Paper No. 18: The Sixteenth Opinion
Class
14 (12/3/07):
·
Focus: 2002 Nuclear Posture Review;
wrap-up discussion of the lawfulness of the use and threat of use of nuclear
weapons; student presentations
·
Readings
·
2002 Nuclear Posture Review Materials, including
Professor Moxley’s paper and background materials describing the Bush
Administration’s 2002 Nuclear Posture Review, available at http://www.nuclearweaponslaw.com/2002NPR/2002NPR_Article.html.
·
Reference Materials:
·
Zelter
decision, available at http://www.scotcourts.gov.uk/opinions/11_00.html.
·
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
·
Brief of Nauru before the ICJ, available at http://www.icj-cij.org/docket/files/95/8680.pdf.
·
Papers No. 19, 20 and 21:
·
Paper No. 19: Issues as to the Lawfulness of
the U.S. Policy of Deterrence
·
Paper No. 20: Impact of the ICJ Decision in
the Nuclear Weapons Advisory Case
·
Paper No. 21: Developing a New Paradigm--A
Lawful Nuclear Policy for the United States for the Post Post Cold War Era
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 law or both?6 Is it a generally
accepted principle of law? (See discussion at 654-57.)7 Does the characterization of the nature of the rule
matter? Is its application to nuclear weapons limited by the practice of many
States of the policy of nuclear deterrence? Identify as many actual cases and
proceedings in which the rule has been interpreted and analyze such
interpretations, insofar as relevant to the lawfulness of the use or threat of
use of nuclear weapons. Was this rule applied in the Nuremberg or other war
crime proceedings, and, if so, how? Could a use or threat of use of nuclear
weapons be unlawful under this rule if it was not otherwise in violation of
customary international law? To what extent, if at all, is a 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 of use of nuclear weapons.
(52-63, 124-25, 219-21, 705-07.)
2. Rule of Proportionality: Review the background, history, and
contemporary meaning of this rule of the law of armed conflict. What is the
nature of this rule? Is it a rule of conventional or customary law or both?8 Is it a generally accepted principle of law? (See discussion at 654-57.) Does the characterization as to the nature
of the rule matter? Is its application to nuclear weapons limited by the
practice of many States of the policy of nuclear deterrence? Identify as many
actual cases and proceedings in which the rule has been interpreted and analyze
such interpretations, insofar as relevant to the lawfulness of the use or
threat of use of nuclear weapons. Was this rule applied in the Nuremberg or
other war crime proceedings, and, if so, how? Could a use or threat of use of
nuclear weapons be unlawful under this rule if it was not otherwise in
violation of customary international law? To what extent, if at all, is a
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 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 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 of use of nuclear weapons. (64-9, 142,
216-19, 699-705.)
4. Role of Law of Armed Conflict in Target
Selection: What is the role of the
law of armed conflict in target selection by the United States?10
By other States? What criteria are used? What guidelines are in place? What
oversight is conducted? What records are maintained? What accountability is
enforced? What, if any, sanctions are imposed for deviations from the
determinations of legal advisors as to the lawfulness of particular strikes?
Are there military manuals or other documents establishing protocols for such
matters, and, if so, what do they say? What, in particular, is the role of the
law of armed conflict in planning by the United States and other States as to
the circumstances in which nuclear weapons might be used or their use
threatened? There has been a lot of reporting in the media about the role of
lawyers in target selection in recent military operations. There has also been
some interesting professional discussion of the matter (e.g., various articles in Andru E. Wall, Ed., Legal and Ethical
Lessons of NATO’s Kosovo Campaign, vol. 78, International Law
Studies (Naval War College, Newport, Rhode Island 2002). Have there been
Congressional hearings on the topic? What else is out there? What are other
States doing in this regard? What ethical obligations does a lawyer have who is
participating in this process with the military if his or her legal judgment is
overridden on military grounds? (45-49, 133-34, 188-89, 226-27, 536, 586, 673,
735-36, 654.)
5. Law of Neutrality: What is the
contemporary law of neutrality? To what extent would the use or threat of use
of nuclear weapons violate the neutrality rights of a neutral State if the
radiation or other effects of the contemplated or threatened strike (a) would
likely or (b) might possibly extend into the territory of the neutral State?
Would the law of neutrality only be violated if, after the fact, it turned out
that the radiation or other effects had in fact extended into the neutral
State? Or would such law be violated if, in advance of the strike, the
extension of such effects into the State appeared (a) possible or (b) likely or
(c) had been foreseeable? What actual judicial or other decisions are available
on this point and what do they show? Were these issues raised in the Nuremberg
or other war crime proceedings or in reparations or other damages actions?
(74-76, 146-48, 221-26, 699-705.)
6. Bases for a Per Se Rule--Level of Certainty as to the Likelihood of
Impermissible Effects that Must Be Present to Render the Use or Threat of Use
of Nuclear Weapons Unlawful: What level of likelihood must be present that
the use of a nuclear weapon would cause impermissible effects for such use to
be per se unlawful? What is the
validity of the legal position taken by the United States in the Nuclear
Weapons Advisory Case that, for the use or threat of use of nuclear weapons to
be per se unlawful, it would have to
be the case that every use of every type of nuclear weapon would
"necessarily" violate the law of armed conflict, or that every use of
nuclear weapons would "inevitably" escalate into a massive strategic
nuclear exchange, resulting "automatically" in the "deliberate"
destruction of the population centers of opposing sides? What is the validity
of the United 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 of the impermissible effects increases, does the level of
probability of such effects that must be present for unlawfulness decrease? (132-33;
see also, 102-03, 113, 226-28, 255-75, 654-57, 762-66.)
7. Risk Analysis: Under the rules of necessity,
proportionality, and discrimination, what level of likelihood of impermissible
effects must be present for a prospective use of nuclear weapons to be
unlawful? What is the relevance of risk analysis to the evaluation of the
lawfulness or unlawfulness of the use or threat of use of nuclear weapons? What
legal basis is there for the application of risk analysis in this context? Are
there any decisions of courts of the United States or of other States or of war
crimes tribunals applying risk analysis? If not why not, and what does this
mean for the applicability of risk analysis to the use or threat of use of
nuclear weapons? (131-36, 162-71, 186-192, 279-92, 293-311, 313-37, 339-45,
729-59.)
8. Mens
Rea/Scienter: What, if any,
mental state is required for the violation by a State of the law of armed
conflict applicable to the use or threat of use of nuclear weapons? What, if
any, mental state is required for the violation of such law by an individual
government official or military person? How is responsibility allocated along
the chain of command of the civilian and military leadership in the United
States for violations of the law of armed conflict in connection with the use
or threat of the use of nuclear weapons? What mental state is required by
current U.S. legislation (see, e.g., 18 U.S.C. § 2441)
criminalizing certain violations of the law of armed conflict? Does the mens rea element for the violation of
the rules of the law of armed conflict differ from rule to rule? Does it
differ, depending upon the terms of any convention setting forth the particular
rule? Most centrally: What role has the issue of mens rea/scienter played in the traditional analysis of the
issue of the lawfulness of the use and threat of use of nuclear weapons? What
role did it play in the Nuremberg and other war crimes proceedings? Why has it
not played a greater role in the traditional analysis of the lawfulness of the
use and threat of use of nuclear weapons? Should it? If it is assumed that the
threat of use of nuclear weapons is unlawful under the law of armed conflict
and that the U.S. policy of deterrence constitutes the threat of use of nuclear
weapons, what factors as to mens rea/scienter
would affect the potential culpability/liability of the civilian and military
personnel of the United States implementing the policy of nuclear deterrence
and of persons working for defense contractors making the weapons backing up
the policy of deterrence? (94-98, 245-47, 313-37, 722-26, 753-59.)
9. The Case for the Lawfulness of the Use and
Threat of Use of Nuclear Weapons: Write a brief in support of the
lawfulness of the use of nuclear weapons in the arsenal of the United States.
The brief should contain a "Facts" sections setting forth the
dispositive facts as to nuclear weapons and their effects and a "Law"
section, analyzing those facts in light of the applicable law. Consider such
questions as the following:
·
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?
·
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?
·
Is it a fair characterization of the U.S.
position before the ICJ that the U.S. argued that the potential effects of the
use of conventional weapons and nuclear weapons would be generally comparable
(140)? Is this factually accurate? What is the significance of this point to
the issue of the lawfulness of the threat or use of nuclear weapons?
·
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?
·
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?
·
Would the United States’ use and threat of use
of nuclear weapons be per se unlawful
under the rules of necessity, proportionality, and discrimination if the
following facts are assumed:
·
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,
·
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,
·
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?
·
In other words, can the United States be bound
by the application of a general rule it recognizes when it does not accept the
validity of the application of that rule in a specific instance? Or is this a
bogus issue in the present context? Is the dispute really one of fact as to the
potential effects of the use of nuclear weapons? And of law, as to the
prerequisites for the existence of a per
se rule? Does the United States, in fact, recognize that the use of nuclear
weapons would be per se unlawful if
such a use could never comply with the law of armed conflict, and simply dispute
the factual matter and stand hard on the legal point that, for a per se rule to arise, it would have to
be clear that all uses of nuclear weapons in all circumstances would be
unlawful?
·
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?
·
If it is assumed that any use of a nuclear
weapon would carry with it some risk that the weapon would have impermissible
effects (e.g., hitting the wrong
target, causing impermissibly widescale injury, and precipitating major
escalation), what is the legal significance of such probabilities?
·
What is the range of potential effects that must
be considered in evaluating whether a particular use of a nuclear weapon would
violate the law of armed conflict? Is it sufficient to evaluate the lawfulness
of a potential use of nuclear weapons based only upon the direct effects, or
must the broader effects (such as the effects of resultant escalation and the
long term effects of the resultant radiation upon human, animal and plant life)
be taken into consideration?
·
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?
·
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 effects as to boomerang on the State
and result in its sustaining more damage than the original target was worth?
10. Lawfulness of the Arsenal of Nuclear Weapons Maintained by the United
States: What nuclear weapons does the United States currently maintain in
its active stockpile?11 As to the various
types of such weapons, what are the arguments as to the lawfulness or
unlawfulness of their use or threat of use? What nuclear weapons does the
United States currently maintain in its inactive stockpile? What is the
lawfulness of the prospective use or threat of use of such weapons? Review the
various types of nuclear weapons the United States has in its active and
inactive stockpiles and analyze which of those types of weapons fit within the
categories of nuclear weapons whose lawfulness the United States urged before
the ICJ and as to which the ICJ concluded it did not have sufficient facts to
determine lawfulness, i.e., highly accurate low yield nuclear weapons.
Correspondingly, analyze what portion of the stockpiles is made up of the types
of weapons that the United States did not contend could lawfully be used and
whose use the ICJ ostensibly found would generally be unlawful. Analyze the
facts as to the inactive weapons: How close to ready are they for use? (129-31,
161, 171-74, 483-500, 501-14, 585-98, 605-32; see also,
2002 Nuclear Posture Review Materials, including Professor Moxley’s paper and
background materials describing the Bush Administration’s 2002 Nuclear Posture
Review, http://www.nuclearweaponslaw.com/2002NPR/2002NPR_Article.html.)
11. Mininukes: What are mininukes? Low yield nuclear weapons? Tactical nuclear
weapons? Are these all the same thing? What are the distinctions, if any,
between such types of weapons? What role do these types of weapon play in U.S.
nuclear policy and planning today? What role are they currently projected to
play in the future? What role have they played in the past? What role should
they play in the future? Is the use and threat of use of such weapons more or
less defensible than that of higher yield nuclear weapons? To what extent do
such weapons release less radiation than higher yield nuclear weapons? What is
the status and significance of recently proposed revisions to current U.S.
legislation banning research and development of nuclear weapons with yields of
less than five kilotons (see, e.g., materials collected at http://www.nuclearweaponslaw.com/Mini_Nukes_Bunker_Busters.html).
What does the legislative history of such legislation and efforts to amend it
reveal as to the arguments for and against such legislation? Is the use and
threat of use of mininukes and low yield and tactical nuclear weapons lawful
under the law of armed conflict? Is the use of such weapons per se unlawful? In what circumstances,
if any, would the use and threat of use of such weapons be lawful? In what
circumstances, if any, would they be unlawful? With respect to the U.S.
argument that "[m]odern nuclear weapon delivery systems are, indeed,
capable of precisely engaging discrete military objectives" (U.S. oral
argument at 70)--is this factual assertion accurate insofar as concerns the radiation
effects of nuclear weapons? If not, what is the legal significance of such U.S.
inability to control radiation effects? Is the use of mininukes more likely to
be lawful than the use of high yield nuclear weapons, since, by definition, the
effects of the mininukes are presumably less extensive? Is the use of mininukes
more likely to be unlawful because conventional weapons could more certainly
achieve any military objective for which the mininukes might be used? Are there
any particular types of military objectives that only nuclear weapons could
achieve? If so, what are they? Why 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.)
12. Comparison of the Legal Regimes Applicable
Respectively to Nuclear, Chemical and Biological Weapons and Analysis of the
Reasons for the Differences: What
are the differences between the applicable law of armed conflict as to nuclear,
chemical and biological weapons? What
are the reasons for such differences? Do the radiation effects of nuclear
weapons constitute poisons, poisonous gas or analogous materials? Is the U.S. position (see, e.g., 143-44)
correct that the radiation effects of nuclear weapons do not render such
weapons unlawful since the blast and heat effects are potentially lawful? Is
that the rule, that, as long as a weapon has a potentially lawful effect, its
use is lawful, regardless of the fact that it also causes presumptively
unlawful effects? Is the United States correct that the prohibition of the use
of poison weapons "does not prohibit nuclear weapons, which are designed
to injure or cause destruction by means other than poisoning the victim, even
though nuclear explosions may also create toxic radioactive byproducts?" (See 143-44.) If so, what is the
basis of such a rule? Where does it appear? What support is there for it? Is it
valid? What is the relevance of the principle of "double effect" to
such rule (see discussion at 387-90).
Did the United States, in its oral argument to the ICJ in support of the
lawfulness of the threat and use of nuclear weapons (see, e.g., oral argument at 70), ignore the
radiation effects of such weapons? If so, was the United States correct that
such effects are irrelevant? Most centrally: Apropos of the U.S. argument (see, e.g., oral
argument before the ICJ at 61), that, if the use of nuclear weapons, like that
of chemical and biological weapons, were unlawful under international law,
there would be a convention setting forth such unlawfulness, as there is with
chemical and biological weapons, analyze whether the use of chemical and
biological weapons was unlawful, and recognized as such, before the conventions formally outlawing such weapons were
enacted. Analogously, is the United States correct in its ostensible position (see, e.g., oral
argument before the ICJ at 72) that the unnecessary suffering principle
prohibits the use of weapons designed specifically to increase the suffering of
persons attacked beyond that necessary to accomplish a particular military
objective, but does not prohibit the use of weapons that simply have that
effect, among other permissible effects? Is the impermissible effect acceptable
under the law of armed conflict if it was not the result of a "specific
design" to cause such effect, but rather a natural but not specifically
intended effect of the specifically desired effects? Are we back to the
principle of double effect here? If so, is it valid? (76-84, 143-45, 197-99,
387-92, 605-32, 708-12.)
13. Respective Effects of Nuclear Versus
Conventional Weapons and the Legal Significance Thereof: Does the United States today have any
actual or potential military objective that it could not achieve with either
conventional weapons it now has or ones it could develop if it expended the
necessary resources? What are the relative likely collateral effects of the use
and threat of use of contemporary nuclear weapons versus such effects of
contemporary conventional weapons? What is the legal significance of the differences
in potential effects of such nuclear and conventional weapons, respectively?
Was the United States correct in arguing to the ICJ that the effects of
conventional and nuclear weapons are comparable? To what extent is the
lawfulness of the use or threat of use of nuclear weapons dependent upon the
conventional weapons that a State has available or could potentially have had
available to meet the military need in question? Does a State have a legal
obligation under the law of armed conflict or otherwise to develop, purchase,
and maintain a sufficient supply of conventional weapons such that it will
always have such weapons available in case of military need and not be in the
position of having to use or threaten to use nuclear weapons because of not having
conventional weapons that could have been available to address the particular
military needs in question? If so, does this mean that two adversaries may be
subjected to differing legal and ethical regimes, dependent upon their relative
level of technological sophistication and financial means? (By way of analogy,
in conducting a conventional strike, is the United States generally required to
use precision-guided rather than dumb weapons, since it has the ability to take
steps to put it in a position of being able to do so?) (See articles in Andru E. Wall, Ed.,
Legal and Ethical Lessons of
NATO’s Kosovo Campaign, vol. 78, International Law Studies (Naval
War College, Newport, Rhode Island 2002) addressing such questions.) (140-42,
397-401, 405-46, 367-73, 633-50.)
14. 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 that has in recent years 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 available
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 a
charge or action? Would such a claim possibly be tolled on any basis? (See generally, 47-48, 99-101, 327-28, 721-22; see also, 313-37; Ryuichi
Shimoda et al. v. The State,
355 Hanrei Jiho 17, translated into English at 8 Japanese Ann. Int'l L. 212
(1964) ("Shimoda"
case); Richard A. Falk, The Shimoda
Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki,
59 AJIL 759 (1965).)
15. Issues as to the Legal Sufficiency of a
Possible Shareholders Derivative Action against a Corporation Participating in
the Manufacture of Nuclear Weapons Components, Assuming that the Use and Threat
of Use of Nuclear Weapons Is Unlawful and that the U.S. Policy of Nuclear
Deterrence Constitutes the Threat of Use of Such Weapons: Is the
manufacture or assembly of nuclear weapons (including delivery systems) and
their components lawful under international and other law? To what criminal and
civil liability, if any, could persons participating in such work potentially
be subject? (See generally, 47-8, 99-101,
327-28, 721-22; see also, 313-37.) What is the
potential criminal and civil liability, if any, of corporations performing such
work? What kinds of actions could be brought against a corporation for engaging
in such activities? What are the prospects of a derivative action against a
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 mens rea/scienter: 94-98, 245-47,
313-37, 722-26, 753-59.) Specifically, if one establishes
·
that the use or threat of use of nuclear weapons
would be unlawful under international law, and
·
that the policy of nuclear deterrence of the
United States is a policy tantamount to the threat of use of nuclear weapons,
·
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, not
the low yield tactical nuclear weapons that the ICJ in the Nuclear Weapons Advisory
Case ostensibly recognized to be possibly lawful)? Would it be a war crime
(101) or a crime against the peace (99)?
·
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?
·
If so, can a shareholder of the corporation
state a legally sufficient shareholders derivative action on behalf of the
corporation against such officers and directors?
·
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?)
·
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?
·
With respect to the question of in what federal
or State court one might bring such an action:
·
What are the requirements as to the posting of a
bond?
·
What other considerations affect choice of
forum?
·
Other issues:
·
Most centrally, could the political question
doctrine successfully be invoked by the officer and director defendants or the
corporation in such an action to bar the judicial determination of the
underlying substantive issues as to the lawfulness or not of the use or threat
of use of nuclear weapons? To what extent does the political question doctrine
differ from jurisdiction to jurisdiction? In what federal circuits (or State
court systems?) would one have the best prospects of avoiding the application
of the political question doctrine?
·
To what extent could the federal statute
substantially protecting government contractors from civil liability14 be invoked by the corporation or the officer and
director defendants to defeat liability?
16. 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 &
Cynthia A. Holt, A Faustian
Bargain? Nuclear Weapons, Negative Security Assurances, and Belligerent
Reprisal, 25 Fletcher F. World Aff. 203 (2001).)
17. 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; see also,
608-609; pp. 56, 59, 61, 62 of U.S. oral argument before the ICJ.)
18. The Sixteenth Opinion: In all, the
judges of the ICJ issued fifteen opinions in the Nuclear Weapons Advisory Case. In the Court’s decision, it
determined that it did not have sufficient facts to determine whether low yield
tactical nuclear weapons could be used in remote areas in such a way as to not
cause impermissible effects. Write the Court’s further decision, analyzing that
issue, based upon the available facts which the Court either regarded itself as
not having or chose not to address. Include in your analysis the materials
received by Professor Moxley from the U.S. armed services pursuant to his
request under the Freedom of Information Act (available at http://www.nuclearweaponslaw.com/FOIA_Materials.html).
(168-171.)
19. Issues as to the Lawfulness of the U.S.
Policy of Deterrence: Under what circumstances, if any, is the threat to
use nuclear weapons unlawful? Does the lawfulness of the threat to use nuclear
weapons depend upon the lawfulness of the threatened use? What is a
"threat?" What is the policy of "deterrence?" Evaluate the
validity of the position taken by Nauru in its brief to the ICJ on this
subject. Does the U.S. policy of deterrence constitute a "threat" to
use nuclear weapons? Is the U.S. policy of deterrence lawful? What is the
difference between the threat implicit in the policy of deterrence and an overt
threat in a particular situation, in terms of their respective lawfulness or
unlawfulness? Is there any difference, in legal effect, between an articulated
policy of deterrence, such as that of the United States, and the deterrence
implicit in a 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.)
20. Impact of the ICJ decision in the Nuclear
Weapons Advisory Case: What has been the impact of the ICJ decision in the
Nuclear Weapons Advisory Case? What judicial decisions have been made around
the world that have been affected by the decision? What do such decisions tell
us? How, if at all, did the Nuclear Weapons Advisory Decision affect the
nuclear policy of the United States or of other nuclear States? Why? To what
extent, if at all, were the Court’s decision and the opinions of the various
judges affected by political considerations? Has the ICJ heard comparable cases
and, if so, does it appear to have addressed them on a legal or a political
basis? See, e.g., http://www.lcnp.org/wcourt/Court%20cases.htm;
http://www.j-n-v.org/prisoners.htm
(under "U.S. nuclear resisters").
21. Developing a New Paradigm--A Lawful
Nuclear Policy for the United States for the Post Post Cold War Era: Given
that much of the traditional analysis as to the lawfulness or unlawfulness of
the use or threat of use of nuclear weapons has grown out of the evaluation of
the strategic milieu during the Cold War, what new considerations should be
brought to bear on this question in our contemporary strategic milieu? What are
the differences between the current milieu and that of the Cold War and what
are the implications of such differences? What is the balance between the
benefits of our current policy of deterrence in terms of deterring the types of
adversaries we presently face and the costs of that policy in terms of
legitimizing the use and threat of use of weapons of mass destruction
("WMD") and fostering proliferation and the overall WMD regime? What
is the role, if any, of nuclear weapons today? Is it fair to say that nuclear
weapons have themselves become our greatest security threat--or do such weapons
even today have a significant role to play in our defense? Under what
circumstances, if any, would it make sense for the United States to use or
threaten to use nuclear weapons in our contemporary environment? What is the
lawfulness of such uses or threats of use of nuclear weapons? Is it the case
today that even a limited use of nuclear weapons by the United States, in the
circumstances in which it would likely use such weapons, would likely escalate
into a widescale nuclear exchange (see 585-98), and, if so, what is the legal
significance of such fact? Would a limited use of nuclear weapons by the United
States likely precipitate the use of chemical and/or biological weapons (see 605-32)? If so, what is the significance, if any, of such
likelihood to the lawfulness of such use of nuclear weapons? Most centrally,
analyze the legal considerations applicable to the policy paradigm you identify
or propose. (741-42.)
22. Use of Nuclear Weapons for Self-Defense:
Under what circumstances, if any, may nuclear weapons be used for self-defense?
Does the right of self-defense trump the law of armed conflict? Do the
restraints of the law of armed conflict apply to the actions of a State when it
is defending its very existence? If so, is there any basis to expect compliance
in such circumstances? If we cannot expect compliance in such circumstances,
what does this mean as to the seriousness of this body of law? Does it even
qualify as "law?" Most centrally, did any State, in its written or oral
arguments to the ICJ, contend that the right of self-defense trumped such rules
of the law of armed conflict as the rules of necessity, proportionality, and
discrimination? If so, what authority, if any, was given for such position, and
what is the validity of such authority? Have any other decisions of the ICJ or
of any other tribunal addressed the scope of a State’s right of self-defense?
If so, what did the decisions decide and on what basis--and what is the
significance of such prior decision(s) in interpreting what the ICJ said on the
subject in the Nuclear Weapons Advisory Case? (174-184, 347-51, 717-21.)
23. Potential Liability of Foreign Government
Officials and Military Personnel and Defense Contractors and/or Officers,
Directors and Employees thereof under the Alien Tort Claim Act: If it is
assumed that the threat or use of nuclear weapons violates international law
and that the policy of deterrence followed by nuclear States constitutes the
threat of use of nuclear weapons, to what extent might legal action be brought
against present or former government officials and military personnel of a
foreign nuclear State and government contractors thereof and their officers,
directors, and employees in U.S. courts under the Alien Tort Claim Act, 28 USC
§ 1350, based upon their participating in their 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?
24. International Criminal Court and Other War
Crimes Tribunals: What is the competence of the International Criminal
Court on issues as to the lawfulness of the use or threat of use of nuclear
weapons? Under what circumstances, if any, could such claims be brought in the
International Criminal Court as to the nuclear policies or actions of the
United States or any other nuclear State? To what extent would the charters of
other war crime tribunals reach violations of the law of armed conflict through
the use or threat of use of nuclear weapons? What precedent, if any, is there
for the prosecution of threatened or attempted violations of the law of armed
conflict? What does this mean as to the prospects of enforcement of the law of
armed conflict insofar as concerns nuclear weapons? (47-8, 317-22, 336-37; see also, Elaina
I. Kalivretakis, Comment, Are
Nuclear Weapons Above the Law? A Look at the International Criminal Court and
the Prohibited Weapons Category, 15 Emory Int’l L. Rev. 683 (2001).)
25. View of Other States as to the Lawfulness
of the Use or Threat of Use of Nuclear Weapons: For anyone having a facility in a language other than English:
Based on available materials in the language of your familiarity, to what
extent is the use or threat of use of nuclear weapons viewed as lawful or
unlawful? How have such legal considerations impacted upon the nuclear policies
of the relevant State(s)?
26.
Nuclear Weapons Proliferation and
Its Relationship to International Law Governing the Use or Threat of Use of
Nuclear Weapons: What nuclear weapons proliferation is taking place
today? What is the lawfulness of such
proliferation? What is the impact of
international law and nuclear weapons policy on such proliferation?
27.
Legal Issues Raised by Iran’s
Nuclear Program: Is Iran developing nuclear weapons? If so, what are the legal and policy issues
applicable to its doing so? What is the
relationship between a state’s developing a nuclear power capability and
nuclear weapons? If Iran is developing
a nuclear weapons capability, would it be lawful for the United States to use
nuclear weapons to destroy or impede that capability?
28.
Legal Issues Raised by North
Korea’s Nuclear Weapons Program: What is the extent of the North Korean
nuclear weapons program? What are the
legal and policy issues applicable to North Korea’s development of nuclear
weapons? What is the relationship
between a state’s developing a nuclear power capability and nuclear
weapons? Would it be lawful for the
United States to use nuclear weapons to destroy or impede North Korea’s nuclear
weapons program?
29. Nuclear Non-Proliferation Treaty Issues: Analysis of the NPT and its future in light of the United States’ current policies as to nuclear weapons, including issues as to the viability of the maintenance by nuclear weapons states of their nuclear weapons capabilities vis-a-vis the obligation of non-nuclear weapons states to refrain from obtaining nuclear weapons; analysis of the viability of keeping fissile materials out of the hands of non-nuclear weapons states while nuclear weapons states do not appear to be headed towards the abolition of nuclear weapons; analysis of related legal issues.
30.
Missile defense: analysis of the
current status, policy and practical significance of missile defense and of
legal issues relating thereto (see 2006 National Security
Strategy (NSS) at 18).
31.
Preemptive use of force:
analysis of the lawfulness or not of the use of force in advance of an imminent
threat, with particular emphasis on the use of nuclear weapons in such a
situation (see NSS at 18).
32.
US Nuclear Primacy: Evaluation
of current US nuclear weapons programs and policy. Consideration of whether the US now seeks nuclear primacy
vis-ŕ-vis the nuclear weapons of other states and of whether, if so, this
amounts to a commitment by the US to maintain a first-strike capability as
against potential nuclear opponents.
Evaluation of whether US nuclear primacy is the way out of the dark
risks of the nuclear weapons world for
the us? Evaluation of the legal
ramifications of the current US posture as to nuclear weapons?
33.
Soviet Conventional Superiority
during Cold War: Evaluation of the extent to which the Soviet Union actually
had conventional weapons superiority during the Cold War and of the extent to
which US nuclear policies during that period were based on an assumed Soviet
superiority in conventional weapons; analysis of related legal issues. To what extent, if any, was there during the
Cold War and is there now a legal obligation on the part of the United States
to exert best efforts to maintain sufficient conventional capability to meet
its foreseeable military needs so as not ever to be in the position of having
to resort to the use of nuclear weapons?
34.
War Fighting versus Deterrence
versus Mutual Assured Destruction (“MAD”) as US Policy: Evaluation of the
extent to which US nuclear policy is and during the Cold War was based on
war-fighting, deterrence, or MAD, and of the differences between these
approaches; analysis of related legal issues.
35.
Relative Costs of Nuclear versus
Conventional Weapons: Analysis as to whether nuclear weapons, on the
assumption that they are intended for deterrence alone and will not be used,
are cheaper than conventional weapons in terms of overall weapons costs, or,
whether, given the costs of byproducts disposal and of addressing health issues
resultant of the nuclear weapons regime, nuclear weapons end up costing as much
as or more than conventional weapons; analysis of related legal issues.
36. 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.
37. Evaluation of the significance to US
nuclear policy of applicable issues as to the lawfulness of the use or threat
of use of nuclear weapons: What, if any, impact do legal considerations
have on US nuclear policy?
38. Analysis
of Legal Issues Applicable to the UK’s Recent Review of Its Nuclear Weapons
Program: Review
of legal issues applicable to the matters discussed in The
Secretary of State for Defence and The Secretary of State for Foreign and
Commonwealth Affairs, The Future of the United Kingdom’s
Nuclear Deterrent, by Command of Her Majesty 5-8, 13-14, (2006), available
at http://www.mod.uk/NR/rdonlyres/AC00DD79-76D6-4FE3-91A1-6A56B03C092F/0/DefenceWhitePaper2006_Cm6994.pdf. Review
of the legal analysis set forth in Michael Fordham QC,
Naina Patel, Proposed Replacement of Trident, Joint Opinion for Peacerights
5-23, available at http://www.nuclearinfo.org/documents/Joint_Opinion.pdf. Review of the legal analysis set forth in Rebecca
Johnson, Nicola Butler, Stephen Pullinger, Worse than Irrelevant, British
Nuclear Arms in the 21st Century, The Acronym Institute for Disarmament
Diplomacy (2006), available at http://www.acronym.org.uk/uk/Worse_than_Irrelevant.pdf.
39.
Duty to Pursue Disarmament in Good Faith
Under NPT Article VI: As confirmed in the ICJ's Nuclear Weapons Advisory
Decision, the Nuclear Non-Proliferation Treaty (NPT) imposes a duty on nuclear
weapons states that are signatories to the NPT to pursue nuclear disarmament in
good faith. Our class readings show
that commentators are in sharp disagreement as to whether the U.S. is complying
with this obligation. This is a major
issue in terms of the likely viability of continuing efforts by the U.S. and
other States to limit nuclear proliferation.
Analyze the extent, if any, to which the U.S. is in compliance with its
obligations under Art. VI. Evaluate the
probable outcome of a case that might be brought to the ICJ to evaluate the
compliance of the U.S. and other nuclear States with their NPT obligations in
this regard.
40.
Obligations under International Law
of Individuals and Corporations, etc. with respect to Non-Proliferation: Various commentators have suggested that
individuals and corporations need to be subject to non-proliferation
obligations under international law, including under the NPT. See, e.g., George
Perkovich, Jessica T. Mathews, Joseph Cirincione, Rose Gottemoeller, and Jon B.
Wolfsthal, Universal Compliance: A Strategy for Nuclear Security 13-49,
Carnegie Endowment for International Peace (2007). Evaluate the extent to which individuals and corporations are
subject to such obligations or to other similar or analogous obligations under
international law. Review the
available precedents from decisions of war crimes tribunals as to the legal
accountability of non-governmental individuals and entities.
41.
Efforts by India and Pakistan to
Establish Protections against Nuclear War:
Review the wide array of precautionary and preventative agreements and
arrangements between the U.S. and the Soviet Union during the Cold War to deal
with potential military problems and prevent accidental nuclear war and analyze
the extent, if any, to which India and Pakistan have made similar or analogous
arrangements, etc.. Analyze the legal
significance of what India and/or Pakistan have or have not done in this
regard. What nuclear doctrines have
India and Pakistan announced or do they reportedly follow? What is the lawfulness or not of those
doctrines?
42.
U.S. Exports of Nuclear Weapons and
Placement of Such Weapons Outside the US: Significance of U.S. Export
Regulations in this Connection: To
what extent does the U.S. transfer nuclear weapons or place nuclear weapons
outside the U.S.? To what extent do
U.S. export regulations permit the export of materials usable in nuclear
weapons or their delivery system?
Analyze the legal significance of same.
Relatedly, does the draft U.S./India agreement described in the Blitz
report comply with the U.S.'s obligations under the NPT? See Weapons of Mass Destruction Commission,
final report, "Weapons of Terror: Freeing the World of Nuclear,
Biological, and Chemical Arms" 81-82 (2006), available at http://www.wmdcommission.org/files/Weapons_of_Terror.pdf.
43.
Chemical and Biological Weapons
Conventions: Is Baker Spring of the
Heritage Foundation correct in his suggestion that the Chemical and Biological
Weapons Conventions are essentially meaningless, give the large number of
chemical and biological weapons possessed by States throughout the world? Analyze the legal significance of the
enforcement status of those conventions on the issues of the lawfulness or
unlawfulness of the use and threat of use of nuclear weapons. Is the U.S. in compliance with those
Conventions, given its "defensive" chemical and biological
programs? See Makhijani Deller &
John Burroughs, eds., Rule of Power or Rule of Law?, Apex Press (2003).
44.
Analysis of the Extent to which Positive
and Negative Security Assurance are Legally Binding: We have seen in the readings various
discussions of positive and negative security assurances. Analyze the extent to which such assurances
are or are not binding. What is the
appropriate role of such assurances in U.S. nuclear policy and practice?
45.
Analysis of the UN General
Assembly's 2005 International Convention for the Suppression of Acts of Nuclear
Terrorism: See Weapons of Mass Destruction Commission, final report,
"Weapons of Terror: Freeing the World of Nuclear, Biological, and Chemical
Arms" (2006) 84-84, available at http://www.wmdcommission.org/files/Weapons_of_Terror.pdf. Analyze the potential impact of this
Convention and its legal significance with respect to the issue of the
lawfulness or not of the use or threat of use of nuclear weapons.
46.
Analysis of the 1991 Commitment
Made by the U.S. and Russia to Eliminate or Limit Specific Types of Non-Strategic
Nuclear Weapons, such as Demolition Munitions, Artillery Shells and Warheads
for Short-Range Ballistic Missiles: See descriptions of such commitments in
Weapons of Mass Destruction Commission, final report, "Weapons of Terror:
Freeing the World of Nuclear, Biological, and Chemical Arms" (2006) e.g.,
98-99, available at http://www.wmdcommission.org/files/Weapons_of_Terror.pdf. Analyze the extent to which such commitments
were binding under any theory of international law and the extent to which the
U.S. and Russia have complied with such commitments, particularly in light of
the tactical nuclear weapons that the U.S. ostensibly still retains in Western
Europe and any such weapons that Russia currently maintains outside of
Russia. Analyze the legal significance
of the applicable facts in this regard.
Is Baker Spring correct that, if the U.S. did not maintain its tactical
nuclear weapons in the territory of various of its Western European allies,
such allies would fell the need to develop such a nuclear capability
themselves? See Baker Spring, Weapons
of Mass Destruction: Current Nuclear Proliferation Challenges, The Heritage
Foundation, Heritage Lectures, October 4, 2006, available at http://www.heritage.org/Research/NationalSecurity/upload/hl_968.pdf.
47.
Space Weapons and Related Equipment:
Investigate U.S. plans to develop a further military capability in outer space
and the legal significance of same.
Reference Sources
U.S.
Military Manuals and Similar Publications Relating to Nuclear Weapons and the
Law of Armed Conflict
·
The U.S. Department of the Navy, Annotated
Supplement to the Commander's Handbook on the Law of Naval Operations,
(Naval Warfare Publication NWP 1-14M (formerly NWP 9), FMFM 1-10 COMDTPUB
P5800.7), 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);
·
The U.S. Department of the Navy, The
Commander's Handbook on the Law of Naval Operations (Naval Warfare
Publication NWP 1-14M (formerly NWP 9), FMFM 1-10 COMDTPUB P5800.7);
·
U.S. Department of the Air Force, International
Law--The Conduct of Armed Conflict and Air Operations (Air Force Pamphlet
110-31, 19 November 1976);
·
U.S. Department of the Air Force, Commander's
Handbook on the Law of Armed Conflict (Air Force Pamphlet 110-34, 25 July
1980);
·
U.S. Department of the Army, The Law of Land
Warfare (FM27-10/18 July 1956) with Change No. 1 (15 July 1976), available
at http://faculty.ed.umuc.edu/~nstanton/FM27-10.htm;
·
U.S. Army, Judge Advocate General's School,
International and Operational Law Department, Law of War Workshop Deskbook,
available at http://www.au.af.mil/au/awc/awcgate/law/low-workbook.pdf;
·
Joint Chiefs of Staff, Doctrine for Joint
Nuclear Operations (Joint Pub 3-12, 15 December 1995), available at http://www.nuclearweaponslaw.com/nukeops3_12_1995.pdf;
·
Joint Chiefs of Staff, Joint Pub 3-12, Doctrine
for Joint Nuclear Operations (Draft “Final Coordination (2)” to Joint Pub
3-12, 15 March 2005),5 available at http://www.wslfweb.org/docs/doctrine/3_12fc2.pdf;
·
Joint Chiefs of Staff, Doctrine for Joint
Theater Nuclear Operations (Joint Pub 3-12.1, Feb. 9, 1996), available at
http://www.wslfweb.org/docs/doctrine/theaternukeops.pdf;
·
Joint Chiefs of Staff, Joint Doctrine for
Operations in Nuclear, Biological, and Chemical (NBC) Environments (Joint
Pub 3-11, July 11, 2000), available at http://www.dtic.mil/doctrine/jel/new_pubs/jp3_11.pdf.
·
Joint Chiefs of Staff, Joint Doctrine for
Combating Weapons of Mass Destruction (Joint Pub 3-40, July 8, 2004),
available at http://www.dtic.mil/doctrine/jel/new_pubs/jp3_40.pdf.
·
U.S. Department of the Air Force, Strategic
Attack (Air Force Doctrine Document 2-1.2, May 20, 1998), available at http://www.dtic.mil/doctrine/jel/service_pubs/afd2_1_2.pdf;
·
U.S. Department of the Air Force, Nuclear
Operations (Air Force Doctrine Document 2-1.5, July 15, 1998), available at
http://www.dtic.mil/doctrine/jel/service_pubs/afd2_1_5.pdf.
Books
Addressing Nuclear Weapons Issues16
·
Peter R. Beckman, Paul W. Crumlish, Michael N.
Dobkowski, & Steven P. Lee, Nuclear Weapons, Nuclear States, and
Terrorism 4th Ed., Sloan Publishing (Cornwall-on-Hudson, NY 2007);
·
Ian Brownlie, International Law and the Use
of Force by States, Oxford University Press (New York, 1991) pp. 262-64,
436; see also, p 373;
·
John Burroughs, The (Il)legality [Legality]
of Threat or Use of Nuclear Weapons, Lit Verlang (Münster, Germany 1997);
·
Joseph Cirincione, Jon
B. Wolfsthal, and Miriam Rajkumar, Deadly Arsenals: Nuclear, Biological, and
Chemical Threats 2nd Ed., Carnegie Endowment (2005);
·
Makhijani Deller & John Burroughs, eds., Rule
of Power or Rule of Law?, Apex Press (2003);
·
Myres S. McDougal and Florentino P. Feliciano, Law
and Minimum World Public Order, Yale University Press (New Haven,
Connecticut, 1967) pp. 23-24, 32, 77, 244, 356, 388-90, 472-74;
·
Elliot L. Meyrowitz, Prohibition of Nuclear
Weapons, Transnational Publishers, Inc. (Dobbs Ferry, New York 1989);
·
Adam Roberts and Richard Guelff, Documents on
the Laws of War, 3rd Ed., Oxford University Press (Oxford,
2002);
·
Stephen I. Schwartz, ed., Atomic Audit,
Brookings Institution Press (Washington, D.C., 1998);
·
Nagendra Singh & Edward McWhinney, Nuclear
Weapons and Contemporary International Law, Martinus Nighoff Publishers
(Dordrecht, Netherlands 1988) (also Boston, London);
·
Andru E. Wall, Ed., Legal and Ethical
Lessons of NATO’s Kosovo Campaign, International Law Studies Vol. 78,
Naval War College (Newport, Rhode Island 2002);
·
D.G. Weeramantry, Nuclear Weapons and
Scientific Responsibility, Longwood Academic (Wolfeboro, New Hampshire
1987);
·
Burns H.Weston, Richard A. Falk, & Hilary
Charlesworth, Basic Documents in International Law and World Order 3rd Ed.,
West Publishing Co. (St. Paul, Minnesota 1997);
·
Burns H. Weston, Richard A. Falk, & Hilary
Charlesworth, International Law and World Order 3rd Ed., West Publishing
Co. (St. Paul, Minnesota, 1997).
Other Reference Materials
·
See detailed bibliography in 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), available at http://www.wmdreport.org/pages/NuclearDisorder-bibliography.pdf.
ENDNOTES
1
Students are also invited to propose their own topics. The paper topics set forth above for various
specific classes are illustrative. The
topics actually selected by students will be spread out throughout approximately
the second half of the course in a way that makes sense in light of the
assigned readings for such classes.
2 The reference materials are set forth to facilitate access
by interested students to such materials.
Reference will be made to some of these materials in class, but students
will not be expected to have read them.
Many of these materials will be useful to students in writing their
papers.
3 Legality of the
Threat or Use of Nuclear Weapons, International Court of Justice,
Advisory Opinion, General List at pt. VI, 35-36, No. 95 (July 8, 1996). (The
decision of the Court and all but five of the fifteen individual opinions are
available at 35 I.L.M. 809. The remaining five, the declarations of Judges
Bedjaoui, Herczegh and Bravo and the individual opinions of Judges Guillaume and
Ranjeva, appear at 35 I.L.M. 1343. Such I.L.M. materials are available on
Lexis.) References herein to briefs and transcripts of oral arguments are to
such materials in the Nuclear Weapons Advisory Case unless otherwise noted.
4 The topics are designed to address pivotal issues as to the
lawfulness of the use or threat of use of nuclear weapons. In some instances,
applicable facts and law that frame the core issues are set forth in the
description of potential topics.
5 This document, which is available on the
website of Western States Legal Foundation (“WSLF”), is described by WSLF as
follows:
Draft
Doctrine for Joint Nuclear Operations, Joint Publication 3-12, Final
Coordination (2) 15 March 2005
This document, along
with the comments from the various commands on the draft, were downloaded from
the Joint Chiefs of Staff doctrine public web site. The site was shut down on
April 7, 2005 and this and other doctrine documents are not available there, at
least for the moment. Although this document still is in draft and hence cannot
be cited as official policy, it provides an indication of how top military
officials are thinking about nuclear weapons use.
See http://www.wslfweb.org/nukes/foia.htm
It is instructive to compare this draft revision
of Joint Chiefs of Staff’s Doctrine for Joint Nuclear Operations with
that original document (available at
http://www.nuclearweaponslaw.com/nukeops3_12_1995.pdf),
which is ostensibly still in effect.
This Draft Doctrine has apparently never been 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 Role in the Reliable Replacement Warhead (RRW) Program,
Heritage Foundation, Executive Memorandum No. 1026, May 11, 2007, available at http://www.heritage.org/Research/NationalSecurity/upload/em_1026.pdf.
6 The United States argued before the ICJ in the Nuclear
Weapons Advisory case, "It is a fundamental principle of international law
that restrictions on States--particularly those affecting the conduct of armed
conflict--cannot be presumed; they must, rather, be found in conventional law
specifically accepted by States, or in customary law generally accepted as such
by the community of nations." For this rule, the United States cited and
quoted Nicaragua v. United States.
Does that case support the U.S. position? What did the ICJ in that case mean in
saying that a State is only bound by rules accepted by the State "by
treaty or otherwise?" (See U.S. oral argument before the ICJ at 60) (emphasis supplied).
7 References are to some pages in Nuclear Weapons and International Law in the Post Cold War World
where the topic or related topics are discussed.
8 The United States argued before the ICJ in the Nuclear
Weapons Advisory Case, "It is a fundamental principle of international law
that restrictions on States--particularly those affecting the conduct of armed
conflict--cannot be presumed; they must, rather, be found in conventional law
specifically accepted by States, or in customary law generally accepted as such
by the community of nations." For this characterization of the law, the
United States cited and quoted Nicaragua
v. United States. Does that case support the U.S. position? What did
the ICJ in that case mean in saying that a State is only bound by rules
accepted by the State "by treaty or
otherwise?" (see U.S. oral argument before the ICJ at
60) (emphasis supplied).
9 The United States argued before the ICJ in the Nuclear
Weapons Advisory Case, "It is a fundamental principle of international law
that restrictions on States--particularly those affecting the conduct of armed
conflict--cannot be presumed; they must, rather, be found in conventional law
specifically accepted by States, or in customary law generally accepted as such
by the community of nations." For this rule, the United States cited and
quoted Nicaragua v. United States.
Does that case support the U.S. position? What did the ICJ in that case mean in
saying that a State is only bound by rules accepted by the State "by
treaty or otherwise?" (see U.S. oral argument before the ICJ at 60) (emphasis supplied).
10 There has been much written in the media
on this subject in connection with recent military operations of the United
States. Why is the United States involving lawyers so heavily in target
selection? Is it obligated to do so? Has a norm developed or is it developing
requiring such care? Are other States exercising similar concern with the
lawfulness of potential targets?
11 As to the distinctions between
"attributed" or "accountable" nuclear weapons and weapons
not characterized as "accountable" and hence not counted, see 502 n.
7.
12 Some delivery systems and component
parts are used for both nuclear and conventional weapons.
13 See, e.g., Diamond
v. Oreamuno, 24 N.Y.2d 494, 248 N.E.2d 910, 301 N.Y.S.2d 78 (1969); Biondi v. Beekman Hill House Apt., Corp., 257 A.D.2d 76, 692 N.Y.S.2d 304
(1st Dep't 1999); Amfesco
Industries, Inc. v. Greenblatt,
172 A.D.2d 261, 568 N.Y.S.2d 593 (1st Dep't 1991).
14 See Defense
Production Act, 50 U.S.C. Appx. Sec.2157 (1994) (partly repealed; Susan
Rousier, Note and Comment, Hercules
v. United States: Government Contractors Beware, 19 Whittier L. Rev. 215 (1997)); Boyle v. United Techs. Corp., 487 U.S. 500, 101 L. Ed. 2d 442,
108 S. Ct. 2510 (1988); In re
"Agent Orange" Product Liability Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984); Hercules Inc. v. United States, 25 Cl. Ct. 616 (1992)).
15 What does the fact that Israel is a
known nuclear power but does not generally acknowledge its possession of such
weapons tell us on this score? See e.g., http://www.fas.org/nuke/guide/israel/nuke/index.html.
16 The library will have these books on
reserve.