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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 Threa