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

 

NUCLEAR WEAPONS & INTERNATIONAL LAW

 

Professor Charles J. Moxley, Jr.

Fordham University School of Law

Fall 2008

 

          This seminar will address issues as to the lawfulness under international law of the use or threat of use of nuclear weapons. The course will focus upon such matters as the following: applicable rules of international law, as articulated by the United States; the United StatesÕ position as to the application of such rules to nuclear weapons; the 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 7:50 PM

303

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 twenty minutes and to answer questions from the professor and other students and participate in discussion of their topics for another approximately twenty minutes. We start the presentations in approximately the eighth class, although the papers need not be turned in until the 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 for 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 studentsÕ papers.

 

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

 

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

 

The following syllabus includes various materials available on the internet.
 

Syllabus

 

Class 1 (8/25/08):

á      Focus: Consideration of the strategic role of nuclear weapons; general introduction to law and facts relevant to the questions of whether the use and  threat of use of nuclear weapons are lawful under the law of armed conflict

á      Readings

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

á      1-11 (assignments, unless otherwise noted, are to Moxley, Nuclear Weapons and International Law in the Post Cold War World)

á      George P. Shultz, William J. Perry, Henry A. Kissinger and Sam Nunn, Toward a Nuclear-Free World, Wall Street Journal, Jan. 15, 2008, available at http://online.wsj.com/public/article_print/SB120036422673589947.html.

á      Statement of the LawyersÕ Committee on Nuclear Policy, Ending U.S. Reliance On Nuclear Weapons and Achieving Their Global Elimination: Wise Policy and Required By Law, March 2008, available at http://www.lcnp.org/disarmament/LCNPstatement2008.pdf.

á      Federation of American Scientists, Natural Resources Defense Council, Union of Concerned Scientists, Towards True Security: Ten Steps The Next President Should Take To Transform U.S. Nuclear Weapons Policy, February 2008, available at http://www.fas.org/press/_docs/Toward%20True%20Security%202008%20.pdf.

á      James Jay Carafano, Ph.D., Baker Spring and Mackenzie Eaglen, Providing for the Common Defense: What 10 Years of Progress Would Look Like, Heritage Foundation Backgrounder #2108, February 19, 2008 (read executive summary, pages 1-2), available at http://www.heritage.org/Research/NationalSecurity/bg2108.cfm. (Read portions relating to nuclear weapons and missile defense.)

á      Remarks of Senator Barack Obama: A New Beginning, October 2, 2007, available at http://www.barackobama.com/2007/10/02/remarks_of_senator_barack_obam_27.php. (Read portions relating to nuclear weapons.)

á      Remarks By John McCain on Nuclear Security, May 27, 2008, available at http://www.johnmccain.com/Informing/News/Speeches/e9c72a28-c05c-4928-ae29-51f54de08df3.htm.

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

á      Reference Materials:2

á      John McCain on Nuclear Security, May 27, 2008, available at http://www.johnmccain.com/Informing/News/PressReleases/74797d36-8fe4-449a-b760-ccae5e866c99.htm.

á      Michael Spies, Stagnation and Redundancy: Report on the 2007 UN First Committee, Disarmament Diplomacy No. 87, Spring 2008, available at http://www.acronym.org.uk/dd/dd87/87unfc.htm.

á      President Bush Approves Significant Reduction in Nuclear Weapons Stockpile, White House Press Release, Dec. 18, 2007, available at http://www.whitehouse.gov/news/releases/2007/12/print/20071218-3.html.

á      Hans Kristensen, White House Announces (Secret) Nuclear Weapons Cuts, FAS Strategic Security Blog, Dec 18, 2007, available at http://www.fas.org/blog/ssp/2007/12/white_house_announces_secret_n.php.

á      Robert S. Norris & Hans M. Kristensen, Nuclear Notebook: U.S. Nuclear Forces, 2008, Bulletin of the Atomic Scientists (March/April 2008) 50-53, 58, available at http://thebulletin.metapress.com/content/pr53n270241156n6/fulltext.pdf.

á      Robert S. Norris & Hans M. Kristensen, Nuclear Notebook: Russian Nuclear Forces, 2008, Bulletin of the Atomic Scientists (May/June 2008) 54-57, 62, available at http://thebulletin.metapress.com/content/t2j78437407v3qv1/fulltext.pdf.

á      Hans M. Kristensen, Chinese Nuclear Arsenal Increased by 25 Percent Since 2006, Pentagon Report Indicates, FAS Strategic Security Blog, Mar. 6, 2008, available at http://www.fas.org/blog/ssp/2008/03/chinese_nuclear_arsenal_increa.php.

á      Weapons of Mass Destruction Commission, Weapons of Terror: Freeing the World of Nuclear, Biological, and Chemical Arms, (final report 2006) 60-109, available at http://www.wmdcommission.org/files/Weapons_of_Terror.pdf.

á      Baker Spring, Weapons of Mass Destruction: Current Nuclear Proliferation Challenges, The Heritage Foundation, Heritage Lectures, Oct. 4, 2006, available at http://www.heritage.org/Research/NationalSecurity/upload/hl_968.pdf.

á      George P. Shultz, William J. Perry, Henry A. Kissinger and Sam Nunn, A World Free of Nuclear Weapons, Wall Street Journal, (Eastern edition) New York, N.Y., January 4, 2007, pg. A.15, available at http://www.comeclean.org.uk/articles.php?articleID=278.

á      Norris, Robert and Hans Kristensen, U.S. Nuclear Forces, 2007, Bulletin of the Atomic Scientists 79 (January/February 2007), available at http://thebulletin.metapress.com/content/91n36687821608un/fulltext.pdf.

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

á      Hans Kristensen, US Air Force Decides to Retire Advanced Cruise Missile, Strategic Security Blog, Federation of American Scientists (March 7, 2007), available at http://www.fas.org/blog/ssp/2007/03/ (bottom of page).

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

á      Dr. Mohamed ElBaradei, Preventing Nuclear Catastrophe: Where Do We Go From Here?, International Conference on the Prevention of Nuclear Catastrophe, IAEA, Luxembourg, May 24 2007, available at http://www.iaea.org/NewsCenter/Statements/2007/ebsp2007n006.html.

á      John Burroughs, The Legal Framework for Non-Use and Elimination of Nuclear Weapons, Briefing Paper for Greenpeace International, John Burroughs, February 2006, Article VI Forum, The Hague, March 2, 2006, available at http://www.lcnp.org/disarmament/Gpeacebrfpaper.pdf.

á      Shimoda et al. v. The State, Tokyo District Court, 7 December 1963.  Source: www.helpicrc.org; Hanrei Jiho, vol. 355, p. 17; translated in The Japanese Annual of International Law, vol. 8, 1964, p. 231, available at www.nuclearweaponslaw.com/Shimoda_v_State.doc.

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

á      Robert M. Sapolsky, A Natural History of Peace, 85 Foreign Affairs 104-120 (January/February 2006), available at www.nuclearweaponslaw.com/Natural_History_of_Peace.pdf.

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

á      Joseph Circincione, Jon B. Wolfsthal, Miriam Rajkumar, Deadly Arsenals, 2d. Ed., Carnegie Endowment for International Peace (2005), available at http://www.nuclearweaponslaw.com/Deadly_Arsenals.pdf.

á      Combating Weapons of Mass Destruction, Testimony before the Armed Services Committee of the United States House of Representatives, March 17, 2004 (statement of Larry M. Wortzel), available at http://www.heritage.org/Research/NationalSecurity/tst031704a.cfm

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

á      Ariel Cohen, Preventing a Nightmare Scenario: Terrorist Attacks Using Russian Nuclear Weapons and Materials, Heritage Foundation Backgrounder #1854 (May 20, 2005), available at http://www.heritage.org/Research/NationalSecurity/bg1854.cfm.

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

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

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

á      Convention Approach

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

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

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

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

á      Transcript of U.S. oral argument before the International Court of Justice in the "Nuclear Weapons Advisory Case"3 available on the ICJ website at www.icj-cij.org. (Direct hotlink: available at http://www.icj-cij.org/docket/files/95/5947.pdf.) The U.S. oral argument begins on page 55. Extra link to US oral argument.

 

Class 2 (9/8/08):

á      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

á      Readings

á      Middle Powers Initiative, Back from the Margins: The Centrality of Nuclear Disarmament (Briefing Paper for the Fifth Meeting of the Article VI Forum, Dublin, Ireland) March 27-29, 2008, available at http://www.gsinstitute.org/mpi/pubs/A6F_Dublin_brief.pdf.

á      Middle Powers Initiative, Visible Intent: NATOÕs Responsibility to Nuclear Disarmament (Briefing Paper) January 2008, available at http://www.middlepowers.org/pubs/NATO_brief_2008.pdf.

á      Hans M. Kristensen, White House Guidance Led to New Nuclear Strike Plans Against Proliferators, Document Shows, Strategic Security Blog, Federation of American Scientists (Nov. 5, 2007), available at http://www.fas.org/blog/ssp/2007/11/white_house_guidance_led_to_ne.php.

á      Baker Spring, Nuclear Games: A Tool for Examining Nuclear Stability in a Proliferated Setting, Heritage Lectures No. 1066, Nov. 15, 2007, available at http://www.heritage.org/Research/NationalSecurity/upload/hl_1066.pdf.

á      Baker Spring, Omnibus Eliminates Funding for the Reliable Replacement Warhead Program, Heritage WebMemo No. 1755, Dec. 18, 2007, available at http://www.heritage.org/Research/NationalSecurity/upload/wm_1755.pdf.

á      2006 National Security Strategy of the United States 19-24, available at www.whitehouse.gov/nsc/nss/2006/nss2006.pdf.

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

á      Reference Materials:

á      Jack Spencer and Baker Spring, The Advantages of Expanding the Nuclear Navy, Heritage WebMemo No. 1693, Nov. 5, 2007, available at  http://www.heritage.org/Research/homelanddefense/upload/wm_1693.pdf.

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

á      Global Action Center for the Environment (GRACE), Proposed Model Statute for an International Sustainable Energy Agency, available at http://www.abolition2000.org/atf/cf/%7B23F7F2AE-CC10-4D6F-9BF8-09CF86F1AB46%7D/ISEA.PDF.

á      Jack Spencer, The Nuclear Renaissance: Ten Principles to Guide U.S. Policy, Heritage WebMemo No. 1640, Sep. 26, 2007, available at http://www.heritage.org/Research/EnergyandEnvironment/upload/wm_1640.pdf.

á      Dr. John Burroughs, Jacqueline Cabasso, Felicity Hill, Andrew Lichterman, Jennifer Nordstrom, Michael Spies, Peter Weiss, Nuclear Disorder or Cooperative Security? An Assessment of the Final Report of the WMD Commission and Its Implications for U.S. Policy, (2007):

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

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

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

á      George Perkovich, Jessica T. Mathews, Joseph Cirincione, Rose Gottemoeller, and Jon B. Wolfsthal, Universal Compliance: A Strategy for Nuclear Security 13-49, Carnegie Endowment for International Peace (2007), available at http://www.carnegieendowment.org/files/univ_comp_rpt07_final1.pdf.

á      Baker Spring, CongressÕs Critical Role in the Reliable Replacement Warhead (RRW) Program, Heritage Foundation, Executive Memorandum No. 1026, May 11, 2007, available at http://www.heritage.org/Research/NationalSecurity/upload/em_1026.pdf.

á      The Secretary of State for Defence and The Secretary of State for Foreign and Commonwealth Affairs, The Future of the United KingdomÕs Nuclear Deterrent, by Command of Her Majesty (2006), available at http://www.mod.uk/NR/rdonlyres/AC00DD79-76D6-4FE3-91A1-6A56B03C092F/0/DefenceWhitePaper2006_Cm6994.pdf.

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

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

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

á      Joint Chiefs of Staff, Joint Pub 3-12, Doctrine for Joint Nuclear Operations (15 December 1995), available at http://www.nuclearweaponslaw.com/nukeop3_12_1995.pdf;

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

á      U.S. briefs before the ICJ in the Nuclear Weapons Advisory Case: The U.S. submitted two briefs, one in connection with a request for an advisory opinion as to nuclear weapons by the World Health Organization of the United Nations and the other in connection with a similar request by the U.N. General Assembly, available as follows:

á      Brief re General Assembly request:

á      available at ICJ website: http://www.icj-cij.org/docket/files/95/8700.pdf.

á      Brief re World Health Organization request:

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

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

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

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

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

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

á      British and Russian oral arguments before the ICJ:

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

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

 

Class 3 (9/15/08):

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

á      Readings

á      15-74

á      Testimony of Ms. Lijon Eknilang, Council Member of Rongelap, before the International Court of Justice, 14 November 1995 (24-28), available at http://www.nuclearweaponslaw.com/Rongelap.doc. 

á      Reference Materials:

á      Hans M. Kristensen, Nuclear Safety and the Saga About the Missing Bent Spear, Strategic Security Blog, Federation of American Scientists (Feb. 22, 2008), available at http://www.fas.org/blog/ssp/2008/02/nuclear_safety_and_the_saga_ab.php.

á      Thom Shanker, U.S. Air Force Chiefs Face Firing After Nuclear Inquiry, Intl Herald Tribune Americas, June 5 2008, http://www.iht.com/articles/2008/06/05/america/pent.php.

á      U.S. Nuclear Weapons in Europe After the Cold War (Presentation To: Nuclear Proliferation: History and Current Problems, Florence, Italy) October 4-5, 2007, available at http://www.nukestrat.com/pubs/Brief_Italy2007.pdf.

á      Vice President CheneyÕs Remarks at the Heritage Foundation Dinner Commemorating the 25th Anniversary of President Reagan's Strategic Defense Initiative, Office of the Vice President, Mar. 11, 2008, available at http://www.whitehouse.gov/news/releases/2008/03/print/20080311-9.html.

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

á      Press Briefing by National Security Advisor Stephen Hadley on the President's Trip to the NATO Summit, Office of the Press Secretary, Mar. 26, 2008, available at http://www.whitehouse.gov/news/releases/2008/03/20080326-3.html.

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

á      Nuclear 9/11: The Ongoing Failure of Imagination, The Continuing Misuses of Fear, Bulletin of the Atomic Scientists 36, 42 (September/October 2006), available at www.nuclearweaponslaw.com/BulletinAtomicSciNuclear911.pdf.

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

á      Keir A. Leiber and Daryl G. Press, Superiority Complex, Atlantic Monthly (July/August 2007), available at www.nuclearweaponslaw.com/Superiority_Complex_article.pdf.

á      Congressional Hearings on Weapons of Mass Destruction: Current Nuclear Proliferation Challenges, Committee on Government Reform, Subcommittee on National Security, Emerging Threats, and International Relations, Serial No. 109-242, 109th Cong., 2d Sess. (September 26, 2006), available at:

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

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

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

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

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

á      Andrew Lichterman and Jacqueline Cabasso, War is Peace, Arms Racing is Disarmament: The Non-Proliferation Treaty and the U.S. Quest for Global Military Dominance, Western States Legal Foundation Special Report (May, 2005), available at http://www.nuclearweaponslaw.com/warispeace.pdf.

 

Class 4 (9/22/08):

á      Focus: Rules of the law of armed conflict applicable to the lawfulness of the use and threat of use of nuclear weapons, as articulated and applied by the United States

á      Readings

á      74-120

á      Keir A. Lieber and Daryl G. Press, The Rise of U.S. Nuclear Primacy, 85 Foreign Affairs 42-54 (March/April 2006), available at www.nuclearweaponslaw.com/Rise_of_US_Nuclear_Primacy.pdf.

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

á      Reference Materials

á      Nuclear Exchange, Responses to The Rise of U.S. Nuclear Primacy article, 85 Foreign Affairs 149-57  (September/October 2006), available at www.nuclearweaponslaw.com/NuclearPrimacyCommentary.pdf.

 

 

Class 5 (9/29/08):

á      Focus: Rules of the law of armed conflict applicable to the lawfulness of the use and threat of use of nuclear weapons, as applied by the United States; the ICJ decision in the Nuclear Weapons Advisory Case.

á      Readings

á      120-153; 155-174

á      The ICJ's decision in the Nuclear Weapons Advisory Case, available in Lexis at 35 I.L.M. 809, 809-832 (http://www.icj-cij.org/docket/files/95/7495.pdf. (We will start discussing the ICJ decision in Class 6).

 

 

Class 6 (10/6/08):

á      Focus: The ICJ decision in the Nuclear Weapons Advisory Case

á      Readings

á      174-208

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

 

 

Class 7 (10/14/08):

á      Focus: the ICJ decision in the Nuclear Weapons Advisory Case

á      Readings

á      208-250

á      ICJ decision: the separate opinions of various Judges:

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

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

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

 

 

Class 8 (10/20/08):

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

á      Readings

á      ICJ decision: the separate opinions of various Judges:

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

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

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

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

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

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

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

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

á      individual opinion of Judge Ranjeva, 35 I.L.M. 1354.

These cites work in Lexis. The opinions are also available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4, although some there are in French only.

á      Reference Materials:

á      2002 National Security Strategy of the United States, available at http://www.whitehouse.gov/ nsc/nss.pdf.

á      John Deutch, A Nuclear Posture for Today, 84 Foreign Affairs 49 (January/February 2005), available at www.nuclearweaponslaw.com/A_Nuclear_Posture_for_Today.pdf.

á      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.)

á      Paper No. 1: Rule of Necessity 

á      Paper No. 2: Rule of Proportionality 

á      Paper No. 3: Rule of Discrimination

 

 

Class 9 (10/27/08):

á      Focus: Generally accepted principles of law applicable to the issue of the lawfulness of the use or threat of use of nuclear weapons; student presentations

á      Readings

á      251-311

á      447-63

á      Papers No. 4, 5, and 6:

á      Paper No. 4: Role of Law of Armed Conflict in Target Selection

á      Paper No. 5: Law of Neutrality

á      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 (11/3/08):

á      Focus: Generally accepted principles of law applicable to the issue of the lawfulness of the use or threat of use of nuclear weapons; risk factors inherent in U.S. operational policy as to nuclear weapons in the post World War II era; student presentations

á      Readings

á      313-373

á      465-81

á      Papers No. 7, 8, and 9:

á      Paper No. 7: Risk Analysis 

á      Paper No. 8: Mens Rea/Scienter 

á      Paper No. 9: The Case for the Lawfulness of the Use and Threat of Use of Nuclear Weapons

 

 

Class 11 (11/10/08):

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

á      Readings

á      515-553

á      585-632

á      Reference Materials:

á      Joint Chiefs of Staff, Joint Pub 3-12.1, Doctrine for Joint Theater Nuclear Operations (9 February 1996), available at http://www.wslfweb.org/docs/doctrine/theaternukeops.pdf

á      briefs of New Zealand and Iran before the ICJ:

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

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

á      Alexei Arbatov and Vladimir Dvorkin, Revising Nuclear Deterrence, Center for International and Security Studies at Maryland (Oct., 2005), available at http://www.nuclearweaponslaw.com/arbatov_dvorkin.pdf.

á      Papers No. 10, 11, and 12:

á      Paper No. 10: Lawfulness of the Arsenal of Nuclear Weapons Maintained by the United States

á      Paper No. 11: Mininukes 

á      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 (11/17/08):

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

á      Readings

á      633-708

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

á      Papers No. 13, 14, and 15:

á      Paper No. 13: Respective Effects of Nuclear Versus Conventional Weapons and the Legal Significance Thereof 

á      Paper No. 14: Enforcement

á      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 (11/24/08):

á      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

á      Readings

á      708-780

á      Papers No. 16, 17, and 18:

á      Paper No. 16: Reprisals

á      Paper No. 17: Issues as to the Lawfulness of the Possession of Nuclear Weapons 

á      Paper No. 18: The Sixteenth Opinion

 

 

Class 14 (12/1/08):

á      Focus: 2002 Nuclear Posture Review; wrap-up discussion of the lawfulness of the use and threat of use of nuclear weapons; student presentations

á      Readings

á      2002 Nuclear Posture Review Materials, including Professor MoxleyÕs paper and background materials describing the Bush AdministrationÕs 2002 Nuclear Posture Review, available at http://www.nuclearweaponslaw.com/2002NPR/2002NPR_Article.html.

á      Reference Materials:

á      Zelter decision, available at http://www.scotcourts.gov.uk/opinions/11_00.html.    

á      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

á      Brief of Nauru before the ICJ, available at http://www.icj-cij.org/docket/files/95/8680.pdf.

á      Papers No. 19, 20 and 21:

á      Paper No. 19: Issues as to the Lawfulness of the U.S. Policy of Deterrence 

á      Paper No. 20: Impact of the ICJ Decision in the Nuclear Weapons Advisory Case 

á      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 StateÕs obligation to comply with this rule excused in extreme circumstances of self-defense (see, e.g., 174-85; U.S. oral argument before the ICJ at 67)? Is this rule subject to per se application as to the lawfulness or unlawfulness of the use or threat of use of nuclear weapons? Most importantly and controversially, what is the range of potential effects that must be considered in evaluating whether the potential use of a nuclear weapon would violate this rule? Would only the "direct" effects be relevant? Or would foreseeable or other indirect effects also be relevant? For example, if one is evaluating the prospective lawfulness of a nuclear strike under this rule, must one include in the analysis an evaluation of the potential effects of possible retaliatory responses by oneÕs adversary or its allies or other States and of the effects of oneÕs own escalatory strikes that might result in light of such possible or actual retaliatory strikes? Most centrally, given that this rule applies to the use of all weapons, are there any unique problems involved in applying it to the use of nuclear weapons? If so, what are those problems and how may they be dealt with? Develop a series of hypotheticals illustrating the application of this rule to the use and threat of use of nuclear weapons. Discuss any other aspects of this rule that you find interesting or particularly applicable to the issues of the lawfulness of the use or threat of use of nuclear weapons. (52-63, 124-25, 219-21, 705-07.)

 

          2.      Rule of Proportionality:  Review the background, history, and contemporary meaning of this rule of the law of armed conflict. What is the nature of this rule? Is it a rule of conventional or customary law or both?8 Is it a generally accepted principle of law? (See discussion at 654-57.) Does the characterization as to the nature of the rule matter? Is its application to nuclear weapons limited by the practice of many States of the policy of nuclear deterrence? Identify as many actual cases and proceedings in which the rule has been interpreted and analyze such interpretations, insofar as relevant to the lawfulness of the use or threat of use of nuclear weapons. Was this rule applied in the Nuremberg or other war crime proceedings, and, if so, how? Could a use or threat of use of nuclear weapons be unlawful under this rule if it was not otherwise in violation of customary international law? To what extent, if at all, is a StateÕs obligation to comply with this rule excused in extreme circumstances of self-defense (see, e.g., 174-85; U.S. oral argument before the ICJ at 67)? Is this rule subject to per se application as to the lawfulness or unlawfulness of the use or threat of use of nuclear weapons? Most importantly and controversially, what is the range of potential effects that must be considered in evaluating whether the potential use of a nuclear weapon would violate this rule? Would only the "direct" effects be relevant? Or would foreseeable or other indirect effects also be relevant? For example, if one is evaluating the prospective lawfulness of a nuclear strike under this rule, must one include in the analysis an evaluation of the potential effects of possible retaliatory responses by oneÕs adversary or its allies or other States and of the effects of oneÕs own escalatory strikes that might result in light of such possible or actual retaliatory strikes? Most centrally, given that this rule applies to the use of all weapons, are there any unique problems involved in applying it to the use of nuclear weapons? If so, what are those problems and how may they be dealt with? Develop a series of hypotheticals illustrating the application of this rule to the use and threat of use of nuclear weapons. Discuss any other aspects of this rule that you find interesting or particularly applicable to the issues of the lawfulness of the use or threat of use of nuclear weapons. (39-52, 136-38, 220, 282, 686-87.)

 

          3.      Rule of Discrimination:   Review the background, history, and contemporary meaning of this rule of the law of armed conflict. What is the nature of this rule? Is it a rule of conventional or customary law or both?9 Is it a generally accepted principle of law? (See discussion at 654-57.) Does the characterization matter as to the nature of the rule? Is its application to nuclear weapons limited by the practice of many States of the policy of nuclear deterrence? Identify as many actual cases and proceedings in which the rule has been interpreted and analyze such interpretations, insofar as relevant to the lawfulness of the use or threat of use of nuclear weapons. Was this rule applied in the Nuremberg or other war crime proceedings, and, if so, how? Could a use or threat of use of nuclear weapons be unlawful under this rule if it was not otherwise in violation of customary international law? To what extent, if at all, is a StateÕs obligation to comply with this rule excused in extreme circumstances of self-defense (see, e.g., 174-85; U.S. oral argument before the ICJ at 67)? Is this rule subject to per se application as to the lawfulness or unlawfulness of the use or threat of use of nuclear weapons? Most importantly and controversially, what is the range of potential effects that must be considered in evaluating whether the potential use of a nuclear weapon would violate this rule? Would only the "direct" effects be relevant? Or would foreseeable or other indirect effects also be relevant? For example, if one is evaluating the prospective lawfulness of a nuclear strike under this rule, must one include in the analysis an evaluation of the potential effects of possible retaliatory responses by oneÕs adversary or its allies or other States and of the effects of oneÕs own escalatory strikes that might result in light of such possible or actual retaliatory strikes? Most centrally, given that this rule applies to the use of all weapons, are there any unique problems involved in applying it to the use of nuclear weapons? If so, what are those problems and how may they be dealt with? Develop a series of hypotheticals illustrating the application of this rule to the use and threat of use of nuclear weapons. Discuss any other aspects of this rule that you find interesting or particularly applicable to the issues of the lawfulness of the use or threat of use of nuclear weapons. (64-9, 142, 216-19, 699-705.)

 

          4.      Role of Law of Armed Conflict in Target Selection:   What is the role of the law of armed conflict in target selection by the United States?10 By other States? What criteria are used? What guidelines are in place? What oversight is conducted? What records are maintained? What accountability is enforced? What, if any, sanctions are imposed for deviations from the determinations of legal advisors as to the lawfulness of particular strikes? Are there military manuals or other documents establishing protocols for such matters, and, if so, what do they say? What, in particular, is the role of the law of armed conflict in planning by the United States and other States as to the circumstances in which nuclear weapons might be used or their use threatened? There has been a lot of reporting in the media about the role of lawyers in target selection in recent military operations. There has also been some interesting professional discussion of the matter (e.g., various articles in Andru E. Wall, Ed., Legal and Ethical Lessons of NATOÕs Kosovo Campaign, vol. 78, International Law Studies (Naval War College, Newport, Rhode Island 2002). Have there been Congressional hearings on the topic? What else is out there? What are other States doing in this regard? What ethical obligations does a lawyer have who is participating in this process with the military if his or her legal judgment is overridden on military grounds? (45-49, 133-34, 188-89, 226-27, 536, 586, 673, 735-36, 654.)

 

          5.      Law of Neutrality: What is the contemporary law of neutrality? To what extent would the use or threat of use of nuclear weapons violate the neutrality rights of a neutral State if the radiation or other effects of the contemplated or threatened strike (a) would likely or (b) might possibly extend into the territory of the neutral State? Would the law of neutrality only be violated if, after the fact, it turned out that the radiation or other effects had in fact extended into the neutral State? Or would such law be violated if, in advance of the strike, the extension of such effects into the State appeared (a) possible or (b) likely or (c) had been foreseeable? What actual judicial or other decisions are available on this point and what do they show? Were these issues raised in the Nuremberg or other war crime proceedings or in reparations or other damages actions? (74-76, 146-48, 221-26, 699-705.)

 

          6.      Bases for a Per Se Rule--Level of Certainty as to the Likelihood of Impermissible Effects that Must Be Present to Render the Use or Threat of Use of Nuclear Weapons Unlawful: What level of likelihood must be present that the use of a nuclear weapon would cause impermissible effects for such use to be per se unlawful? What is the validity of the legal position taken by the United States in the Nuclear Weapons Advisory Case that, for the use or threat of use of nuclear weapons to be per se unlawful, it would have to be the case that every use of every type of nuclear weapon would "necessarily" violate the law of armed conflict, or that every use of nuclear weapons would "inevitably" escalate into a massive strategic nuclear exchange, resulting "automatically" in the "deliberate" destruction of the population centers of opposing sides? What is the validity of the United StatesÕ choice of language--"necessarily," "inevitably," "automatically," and "deliberate"? Is the United States correct that such high levels of certainty and intentionality as to unlawful consequences must be present before a per se rule could arise? As the seriousness of the impermissible effects increases, does the level of probability of such effects that must be present for unlawfulness decrease? (132-33; see also, 102-03, 113, 226-28, 255-75, 654-57, 762-66.)

 

          7.      Risk Analysis:  Under the rules of necessity, proportionality, and discrimination, what level of likelihood of impermissible effects must be present for a prospective use of nuclear weapons to be unlawful? What is the relevance of risk analysis to the evaluation of the lawfulness or unlawfulness of the use or threat of use of nuclear weapons? What legal basis is there for the application of risk analysis in this context? Are there any decisions of courts of the United States or of other States or of war crimes tribunals applying risk analysis? If not why not, and what does this mean for the applicability of risk analysis to the use or threat of use of nuclear weapons? (131-36, 162-71, 186-192, 279-92, 293-311, 313-37, 339-45, 729-59.)

 

          8.      Mens Rea/Scienter:  What, if any, mental state is required for the violation by a State of the law of armed conflict applicable to the use or threat of use of nuclear weapons? What, if any, mental state is required for the violation of such law by an individual government official or military person? How is responsibility allocated along the chain of command of the civilian and military leadership in the United States for violations of the law of armed conflict in connection with the use or threat of the use of nuclear weapons? What mental state is required by current U.S. legislation (see, e.g., 18 U.S.C. ¤ 2441) criminalizing certain violations of the law of armed conflict? Does the mens rea element for the violation of the rules of the law of armed conflict differ from rule to rule? Does it differ, depending upon the terms of any convention setting forth the particular rule? Most centrally: What role has the issue of mens rea/scienter played in the traditional analysis of the issue of the lawfulness of the use and threat of use of nuclear weapons? What role did it play in the Nuremberg and other war crimes proceedings? Why has it not played a greater role in the traditional analysis of the lawfulness of the use and threat of use of nuclear weapons? Should it? If it is assumed that the threat of use of nuclear weapons is unlawful under the law of armed conflict and that the U.S. policy of deterrence constitutes the threat of use of nuclear weapons, what factors as to mens rea/scienter would affect the potential culpability/liability of the civilian and military personnel of the United States implementing the policy of nuclear deterrence and of persons working for defense contractors making the weapons backing up the policy of deterrence? (94-98, 245-47, 313-37, 722-26, 753-59.)

 

          9.      The Case for the Lawfulness of the Use and Threat of Use of Nuclear Weapons: Write a brief in support of the lawfulness of the use of nuclear weapons in the arsenal of the United States. The brief should contain a "Facts" sections setting forth the dispositive facts as to nuclear weapons and their effects and a "Law" section, analyzing those facts in light of the applicable law. Consider such questions as the following:

á      Can the United States control the radiation effects of nuclear weapons? Are such effects relevant to the consideration of the lawfulness of the use and threat of use of nuclear weapons? Is the United StatesÕ characterization before the ICJ that "[m]odern nuclear weapon delivery systems are, indeed, capable of precisely engaging discrete military objectives" (oral argument at 70) accurate as to the radiation effects of such weapons?

á      Was it the U.S. position before the ICJ that the radiation effects of nuclear weapons are not relevant to lawfulness of the use of such weapons? Is this the U.S. position generally? Is such a position valid under the law of armed conflict?

á      Is it a fair characterization of the U.S. position before the ICJ that the U.S. argued that the potential effects of the use of conventional weapons and nuclear weapons would be generally comparable (140)? Is this factually accurate? What is the significance of this point to the issue of the lawfulness of the threat or use of nuclear weapons?

á      Is it a fair characterization that the United States, in its arguments before the ICJ, only defended the lawfulness of the limited use of low yield nuclear weapons in remote areas? Did the United States implicitly acknowledge, in its arguments to the ICJ, that the use of high yield nuclear weapons and the widescale use of limited nuclear weapons would be unlawful?

á      What basis, if any, is there for asserting the lawfulness of the use of high yield nuclear weapons against "co-located" military targets in urban areas and of the widescale use of low yield nuclear weapons in such areas?

á      Would the United StatesÕ use and threat of use of nuclear weapons be per se unlawful under the rules of necessity, proportionality, and discrimination if the following facts are assumed:

á      That the United States recognizes the substance and binding nature of such rules and their applicability to the use and threat of use of nuclear weapons,

á      That the objective facts as to the effects of nuclear weapons are such that it is clear that no use of nuclear weapons could comply with such rules,

á      That the United States and other nuclear weapons States and States relying upon such States for their security, while refraining from the use of nuclear weapons, have not done so out of a sense of obligation, but, instead, have always asserted and presently assert the right to use such weapons?

á      In other words, can the United States be bound by the application of a general rule it recognizes when it does not accept the validity of the application of that rule in a specific instance? Or is this a bogus issue in the present context? Is the dispute really one of fact as to the potential effects of the use of nuclear weapons? And of law, as to the prerequisites for the existence of a per se rule? Does the United States, in fact, recognize that the use of nuclear weapons would be per se unlawful if such a use could never comply with the law of armed conflict, and simply dispute the factual matter and stand hard on the legal point that, for a per se rule to arise, it would have to be clear that all uses of nuclear weapons in all circumstances would be unlawful?

á      If it is assumed that some uses of nuclear weapons by the United States (say, the use of low yield tactical nuclear weapons in remote areas) would be lawful and that other uses (say, the use of high yield nuclear weapons) would be unlawful, what does that mean as to the lawfulness of the U.S. policy of deterrence, insofar as it without qualification threatens the use of all of the nuclear weapons in the U.S. arsenal and such weapons include the high yield nuclear weapons whose use would be presumptively unlawful?

á      If it is assumed that any use of a nuclear weapon would carry with it some risk that the weapon would have impermissible effects (e.g., hitting the wrong target, causing impermissibly widescale injury, and precipitating major escalation), what is the legal significance of such probabilities?

á      What is the range of potential effects that must be considered in evaluating whether a particular use of a nuclear weapon would violate the law of armed conflict? Is it sufficient to evaluate the lawfulness of a potential use of nuclear weapons based only upon the direct effects, or must the broader effects (such as the effects of resultant escalation and the long term effects of the resultant radiation upon human, animal and plant life) be taken into consideration?

á      Under the rule that civilians may not be targeted "as such," would the use of nuclear weapons against major military targets in areas where there are many civilians be unlawful if it were foreseeable that many civilians would be killed and injured? What is the contemporary validity, content and defensibleness of the "as such" rule?

á      Is it a fair characterization to say that a StateÕs use of a nuclear weapon would not comply with the rule of necessity if the use would likely cause such extensive effects as to boomerang on the State and result in its sustaining more damage than the original target was worth?

 

          10. Lawfulness of the Arsenal of Nuclear Weapons Maintained by the United States: What nuclear weapons does the United States currently maintain in its active stockpile?11 As to the various types of such weapons, what are the arguments as to the lawfulness or unlawfulness of their use or threat of use? What nuclear weapons does the United States currently maintain in its inactive stockpile? What is the lawfulness of the prospective use or threat of use of such weapons? Review the various types of nuclear weapons the United States has in its active and inactive stockpiles and analyze which of those types of weapons fit within the categories of nuclear weapons whose lawfulness the United States urged before the ICJ and as to which the ICJ concluded it did not have sufficient facts to determine lawfulness, i.e., highly accurate low yield nuclear weapons. Correspondingly, analyze what portion of the stockpiles is made up of the types of weapons that the United States did not contend could lawfully be used and whose use the ICJ ostensibly found would generally be unlawful. Analyze the facts as to the inactive weapons: How close to ready are they for use? (129-31, 161, 171-74, 483-500, 501-14, 585-98, 605-32; see also, 2002 Nuclear Posture Review Materials, including Professor MoxleyÕs paper and background materials describing the Bush AdministrationÕs 2002 Nuclear Posture Review, http://www.nuclearweaponslaw.com/2002NPR/2002NPR_Article.html.)

 

          11.      Mininukes:   What are mininukes? Low yield nuclear weapons? Tactical nuclear weapons? Are these all the same thing? What are the distinctions, if any, between such types of weapons? What role do these types of weapon play in U.S. nuclear policy and planning today? What role are they currently projected to play in the future? What role have they played in the past? What role should they play in the future? Is the use and threat of use of such weapons more or less defensible than that of higher yield nuclear weapons? To what extent do such weapons release less radiation than higher yield nuclear weapons? What is the status and significance of recently proposed revisions to current U.S. legislation banning research and development of nuclear weapons with yields of less than five kilotons (see, e.g., materials collected at http://www.nuclearweaponslaw.com/Mini_Nukes_Bunker_Busters.html). What does the legislative history of such legislation and efforts to amend it reveal as to the arguments for and against such legislation? Is the use and threat of use of mininukes and low yield and tactical nuclear weapons lawful under the law of armed conflict? Is the use of such weapons per se unlawful? In what circumstances, if any, would the use and threat of use of such weapons be lawful? In what circumstances, if any, would they be unlawful? With respect to the U.S. argument that "[m]odern nuclear weapon delivery systems are, indeed, capable of precisely engaging discrete military objectives" (U.S. oral argument at 70)--is this factual assertion accurate insofar as concerns the radiation effects of nuclear weapons? If not, what is the legal significance of such U.S. inability to control radiation effects? Is the use of mininukes more likely to be lawful than the use of high yield nuclear weapons, since, by definition, the effects of the mininukes are presumably less extensive? Is the use of mininukes more likely to be unlawful because conventional weapons could more certainly achieve any military objective for which the mininukes might be used? Are there any particular types of military objectives that only nuclear weapons could achieve? If so, what are they? Why canÕt conventional weapons achieve such objectives? How close are we to being able to develop a conventional weapons capability to address such objectives? With respect to the lawfulness of the first use of mininukes, what is the legal significance of the fact that such use would cross the "nuclear threshold"? (129-31, 171-74, 190, 483-500, 506-14, 585-98; see also, John Burroughs, The Lawfulness of "Low-Yield," Earth-Penetrating Nuclear Weapons, January 20, 2003 (available at http://www.lcnp.org/ wcourt/ nwlawfulness.htm.)

 

          12.      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 NATOÕs Kosovo Campaign, vol. 78, International Law Studies (Naval War College, Newport, Rhode Island 2002) addressing such questions.) (140-42, 397-401, 405-46, 367-73, 633-50.)

 

          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 LawyersÕ Committee for Nuclear Policy (LCNP) and other available sources as to cases which have arisen around the world involving issues as the lawfulness of the use or threat of use of nuclear weapons (see, e.g., the LCNP web site at http://www.lcnp.org/ wcourt/Court%20cases.htm; see also, http://www.j-n-v.org/prisoners.htm). If one assumes that the use of nuclear weapons is unlawful, is the United States subject to criminal or civil liability for its use of nuclear weapons against Hiroshima and Nagasaki? What would be the legal obstacles to such a charge or action? What are the statute of limitations constraints as to such a charge or action? Would such a claim possibly be tolled on any basis? (See generally, 47-48, 99-101, 327-28, 721-22; see also, 313-37; Ryuichi Shimoda et al. v. The State, 355 Hanrei Jiho 17, translated into English at 8 Japanese Ann. Int'l L. 212 (1964) ("Shimoda" case); Richard A. Falk, The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki, 59 AJIL 759 (1965).)

 

          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 corporationÕs officers and directors for causing the corporation to engage in manufacturing, assembling or other activities with respect to nuclear weapons or their components? (332-33; see generally, materials on mens rea/scienter: 94-98, 245-47, 313-37, 722-26, 753-59.) Specifically, if one establishes

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

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

á      would it then be unlawful (a violation of international law) for a corporation to manufacture such weapons, including delivery vehicles and components thereof (particularly delivery vehicles used solely12 for large scale nuclear weapons, 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)?

á      If so, is it a breach of fiduciary or other duty for an officer or director of the corporation to permit the corporation to manufacture such weapons?

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

á      Does it matter to the legal sufficiency of such an action that the corporation has not yet sustained damages, and indeed is reaping substantial profits from the nuclear manufacturing activities? Or is it enough that the activities are unlawful (like price-fixing or predatory pricing or the like) and potentially subject the corporation to criminal and/or civil liability?13 (Are there analogous areas where corporations have been subjected to criminal or civil liability for conducting activities that assist foreign governments in activities that are unlawful?)

á      To what extent does the potential viability of a derivative action along the foregoing lines differ based upon the forum in which one might bring the action or the StateÕs law that one might invoke?

á      With respect to the question of in what federal or State court one might bring such an action:

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

á      What other considerations affect choice of forum?

á      Other issues:

á      Most centrally, could the political question doctrine successfully be invoked by the officer and director defendants or the corporation in such an action to bar the judicial determination of the underlying substantive issues as to the lawfulness or not of the use or threat of use of nuclear weapons? To what extent does the political question doctrine differ from jurisdiction to jurisdiction? In what federal circuits (or State court systems?) would one have the best prospects of avoiding the application of the political question doctrine?

á      To what extent could the federal statute substantially protecting government contractors from civil liability14 be invoked by the corporation or the officer and director defendants to defeat liability?

 

          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 belligerentÕs conduct and the nature of such conduct?" (U.S. oral argument at 69.) What is a reprisal? Are reprisals lawful under contemporary international law? What limitations are there on actions that may permissibly be taken in reprisal? Is the apparent U.S. position valid that it is permitted in the course of a reprisal to attack civilians with nuclear weapons (see, e.g., 712 n. 227)? To what extent would it be lawful to use nuclear weapons in reprisal, following another StateÕs use of nuclear, chemical or biological weapons? If any such use would be lawful, what would be the limits upon such use? Would the "second use" of nuclear weapons be lawful as a reprisal, given the enemyÕs first use? What is the difference in the law applicable to first versus second nuclear strikes? Does the right of reprisal potentially arise if a State, in an unlawful act of aggression, attacks a second State? If so, in what circumstances? What are the differences, if any, between the right of reprisal and that of self-defense? (88-94, 150-51, 228-29, 712-16, 776-80; see also, Paula B. McCarron & Cynthia A. Holt, A Faustian Bargain? Nuclear Weapons, Negative Security Assurances, and Belligerent Reprisal, 25 Fletcher F. World Aff. 203 (2001).)

 

          17.      Issues as to the Lawfulness of the Possession of Nuclear Weapons:   What is the lawfulness of a StateÕs possession of nuclear weapons? What, if anything, do the various analyses as to the lawfulness of the use or threat of use of nuclear weapons mean or imply as to the lawfulness of the possession of such weapons? What analogies can be drawn from the legal regimes as to chemical and biological weapons? What analogies can be drawn from general principles of law followed by civilized nations generally? Does the possession by a State of a substance or mechanism that could cause serious injury beyond the border of the state impose a legal obligation of care or other duty upon the State? Whatever that duty is, is it capable of being fulfilled, when the mechanism is a nuclear weapon? (Was the Soviet Union subject to claims by States and persons outside that State for damages sustained as a result of Chernobyl? Were such claims asserted? If so, how were they resolved?) To the extent that international law or law generally permits the possession of substances or mechanisms whose use would be unlawful, what is the rationale for permitting such possession or for not prohibiting it? Does such rationale withstand contemporary analysis? Review the various rules of the law of armed conflict that prohibit the use of specific weapons. Does the law of armed conflict also prohibit possession of such weapons? What is the legal significance, if any, of the possession by a State of a weapon which it would be unlawful to use? Of a weapon whose effects cannot be controlled? Would such possession imply a threat which would bring the possession of the weapon within the prohibition of threatening to take unlawful actions? (xvii, 10, 46-7, 114, 116-19, 199-201, 206, 772-73; see also, 608-609; pp. 56, 59, 61, 62 of U.S. oral argument before the ICJ.)

 

          18.      The Sixteenth Opinion: In all, the judges of the ICJ issued fifteen opinions in the Nuclear Weapons Advisory Case. In the CourtÕs decision, it determined that it did not have sufficient facts to determine whether low yield tactical nuclear weapons could be used in remote areas in such a way as to not cause impermissible effects. Write the CourtÕs further decision, analyzing that issue, based upon the available facts which the Court either regarded itself as not having or chose not to address. Include in your analysis the materials received by Professor Moxley from the U.S. armed services pursuant to his request under the Freedom of Information Act (available at http://www.nuclearweaponslaw.com/FOIA_Materials.html). (168-171.)

 

          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 StateÕs known possession of nuclear weapons?15 If the policy of deterrence can prevent attacks by other States or the use by other States of weapons of mass destruction, should such policy be lawful even if the actual use of the weapons would be unlawful? Is such a policy lawful? What is the significance of the U.S. acknowledgement in its oral argument before the ICJ that the U.S. policy of nuclear deterrence involves the "use" of such weapons (U.S. oral argument at 69)? (10, 46, 151-53, 156 n2, 202-08, 447-63, 515-20, 772-73; see also, U.S. oral argument before the ICJ at 79; Charles J. Moxley Jr., The Unlawfulness of the United Kingdom's Policy of Nuclear Deterrence: The Invalidity of the Scottish High Court's Decision in Zelter, Disarmament Diplomacy No. 58, June 2001 (available at http://www.nuclearweaponslaw.com/United_Kingdom_Scots.pdf.)

 

          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 CourtÕs decision and the opinions of the various judges affected by political considerations? Has the ICJ heard comparable cases and, if so, does it appear to have addressed them on a legal or a political basis? See, e.g., http://www.lcnp.org/wcourt/Court%20cases.htm; http://www.j-n-v.org/prisoners.htm (under "U.S. nuclear resisters").

 

          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 StateÕs right of self-defense? If so, what did the decisions decide and on what basis--and what is the significance of such prior decision(s) in interpreting what the ICJ said on the subject in the Nuclear Weapons Advisory Case? (174-184, 347-51, 717-21.)

 

          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 StateÕs implementation of its policy of deterrence? Anticipate the possible claims and objections and develop and analyze the best arguments on both sides, finally setting forth your own conclusion as to the viability of such an action. Are there similar statutes in other States that might offer potential forums for such litigation? If other States had comparable statutes, would the United States recognize such statutes?

 

          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 IntÕl 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 IranÕs Nuclear Program: Is Iran developing nuclear weapons?  If so, what are the legal and policy issues applicable to its doing so?  What is the relationship between a stateÕs developing a nuclear power capability and nuclear weapons?   If Iran is developing a nuclear weapons capability, would it be lawful for the United States to use nuclear weapons to destroy or impede that capability?

 

         28.     Legal Issues Raised by North KoreaÕs Nuclear Weapons Program: What is the extent of the North Korean nuclear weapons program?  What are the legal and policy issues applicable to North KoreaÕs development of nuclear weapons?  What is the relationship between a stateÕs developing a nuclear power capability and nuclear weapons?   Would it be lawful for the United States to use nuclear weapons to destroy or impede North KoreaÕs nuclear weapons program?

 

         29.     Nuclear Non-Proliferation Treaty Issues: Analysis of the NPT and its future in light of the United StatesÕ current policies as to nuclear weapons, including issues as to the viability of the maintenance by nuclear weapons states of their nuclear weapons capabilities vis-a-vis the obligation of non-nuclear weapons states to refrain from obtaining nuclear weapons; analysis of the viability of keeping fissile materials out of the hands of non-nuclear weapons states while nuclear weapons states do not appear to be headed towards the abolition of nuclear weapons; analysis of related legal issues.

 

         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-ˆ-vis the nuclear weapons of other states and of whether, if so, this amounts to a commitment by the US to maintain a first-strike capability as against potential nuclear opponents.   Evaluation of whether US nuclear primacy is the way out of the dark risks of the nuclear weapons world for  the us?  Evaluation of the legal ramifications of the current US posture as to nuclear weapons? 

 

         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 (ÒMADÓ) as US Policy: Evaluation of the extent to which US nuclear policy is and during the Cold War was based on war-fighting, deterrence, or MAD, and of the differences between these approaches; analysis of related legal issues.

 

         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 UKÕs Recent Review of Its Nuclear Weapons Program:  Review of legal issues applicable to the matters discussed in The Secretary of State for Defence and The Secretary of State for Foreign and Commonwealth Affairs, The Future of the United KingdomÕs Nuclear Deterrent, by Command of Her Majesty 5-8, 13-14, (2006), available at http://www.mod.uk/NR/rdonlyres/AC00DD79-76D6-4FE3-91A1-6A56B03C092F/0/DefenceWhitePaper2006_Cm6994.pdf.  Review of the legal analysis set forth in Michael Fordham QC, Naina Patel, Proposed Replacement of Trident, Joint Opinion for Peacerights 5-23, available at http://www.nuclearinfo.org/documents/Joint_Opinion.pdf.  Review of the legal analysis set forth in Rebecca Johnson, Nicola Butler, Stephen Pullinger, Worse than Irrelevant, British Nuclear Arms in the 21st Century, The Acronym Institute for Disarmament Diplomacy (2006), available at http://www.acronym.org.uk/uk/Worse_than_Irrelevant.pdf.

 

         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.

 

         48.     Relationship of Nuclear Power and Nuclear Weapons, Problems and Solutions:  Advisability of nuclear power in the context of worldwide energy needs, global warming, and other considerations; relationship of nuclear power to nuclear weapons; exploration of ways to minimize the risk of nuclear weapons development in states with nuclear power programs; analysis of the status of nuclear power programs under the Nuclear Non-Proliferation Treaty and consideration of possible amendments of the NPT or other approaches to address any problems/dangers in this regard.

 

         49.     Analysis of the International Atomic Energy Commission: What is it?  How does it operate?  What is its role and effectiveness?  What have been its successes and failures?  What, if any, changes are advisable with respect to the IAEA? What are the causes of any problems it has and of any failures it has sustained?  What is the impact of applicable law as to nuclear weapons on the IAEAÕs mandate, activities, etc.?

 

         50.     View of Nuclear Weapons by Presidential Candidates:  Analyze the views expressed by U.S. Presidential candidates as to nuclear weapons, including as to their significance to our national defense, effectiveness, dangers, risks, etc., and analyze those views in light of the law applicable to the possession, threat of use, and use of nuclear weapons.

 

Reference Sources

 

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

 

á      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); 

 

á      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);

 

á      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);

 

á      U.S. Department of the Air Force, Commander's Handbook on the Law of Armed Conflict (Air Force Pamphlet 110-34, 25 July 1980);

 

á      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;

 

á      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;

 

á      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;

 

á      Joint Chiefs of Staff, Joint Pub 3-12, Doctrine for Joint Nuclear Operations (Draft ÒFinal Coordination (2)Ó to Joint Pub 3-12, 15 March 2005),5 available at http://www.wslfweb.org/docs/doctrine/3_12fc2.pdf;  

 

á      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;

 

á      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. 

 

á      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.

 

á      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;

 

á      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

 

á      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);

 

á      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;

 

á      John Burroughs, The (Il)legality [Legality] of Threat or Use of Nuclear Weapons, Lit Verlang (MŸnster, Germany 1997);

 

á      Joseph Cirincione, Jon B. Wolfsthal, and Miriam Rajkumar, Deadly Arsenals: Nuclear, Biological, and Chemical Threats 2nd Ed., Carnegie Endowment (2005);

 

á      Makhijani Deller & John Burroughs, eds., Rule of Power or Rule of Law?, Apex Press (2003);

 

á      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;

 

á      Elliot L. Meyrowitz, Prohibition of Nuclear Weapons, Transnational Publishers, Inc. (Dobbs Ferry, New York 1989);

 

á      Adam Roberts and Richard Guelff, Documents on the Laws of War, 3rd Ed., Oxford University Press (Oxford, 2002);

 

á      Stephen I. Schwartz, ed., Atomic Audit, Brookings Institution Press (Washington, D.C., 1998);

 

á      Nagendra Singh & Edward McWhinney, Nuclear Weapons and Contemporary International Law, Martinus Nighoff Publishers (Dordrecht, Netherlands 1988) (also Boston, London);

 

á      Andru E. Wall, Ed., Legal and Ethical Lessons of NATOÕs Kosovo Campaign, International Law Studies Vol. 78, Naval War College (Newport, Rhode Island 2002);

 

á      D.G. Weeramantry, Nuclear Weapons and Scientific Responsibility, Longwood Academic (Wolfeboro, New Hampshire 1987);

 

á      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);

 

á      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

 

á      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 (ÒWSLFÓ), is described by WSLF as follows:

 

Draft Doctrine for Joint Nuclear Operations, Joint Publication 3-12, Final Coordination (2) 15 March 2005

 

This document, along with the comments from the various commands on the draft, were downloaded from the Joint Chiefs of Staff doctrine public web site. The site was shut down on April 7, 2005 and this and other doctrine documents are not available there, at least for the moment. Although this document still is in draft and hence cannot be cited as official policy, it provides an indication of how top military officials are thinking about nuclear weapons use.

 

            See http://www.wslfweb.org/nukes/foia.htm

 

It is instructive to compare this draft revision of Joint Chiefs of StaffÕs Doctrine for Joint Nuclear Operations with that original document (available at http://www.nuclearweaponslaw.com/nukeop3_12_1995.pdf), 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, CongressÕs Critical Role in the Reliable Replacement Warhead (RRW) Program, Heritage Foundation, Executive Memorandum No. 1026, May 11, 2007, available at http://www.heritage.org/Research/NationalSecurity/upload/em_1026.pdf.

 

6 The United States argued before the ICJ in the Nuclear Weapons Advisory case, "It is a fundamental principle of international law that restrictions on States--particularly those affecting the conduct of armed conflict--cannot be presumed; they must, rather, be found in conventional law specifically accepted by States, or in customary law generally accepted as such by the community of nations." For this rule, the United States cited and quoted Nicaragua v. United States. Does that case support the U.S. position? What did the ICJ in that case mean in saying that a State is only bound by rules accepted by the State "by treaty or otherwise?" (See U.S. oral argument before the ICJ at 60) (emphasis supplied).

 

7 References are to some pages in Nuclear Weapons and International Law in the Post Cold War World where the topic or related topics are discussed.

 

8 The United States argued before the ICJ in the Nuclear Weapons Advisory Case, "It is a fundamental principle of international law that restrictions on States--particularly those affecting the conduct of armed conflict--cannot be presumed; they must, rather, be found in conventional law specifically accepted by States, or in customary law generally accepted as such by the community of nations." For this characterization of the law, the United States cited and quoted Nicaragua v. United States. Does that case support the U.S. position? What did the ICJ in that case mean in saying that a State is only bound by rules accepted by the State "by treaty or otherwise?" (see U.S. oral argument before the ICJ at 60) (emphasis supplied).

 

9 The United States argued before the ICJ in the Nuclear Weapons Advisory Case, "It is a fundamental principle of international law that restrictions on States--particularly those affecting the conduct of armed conflict--cannot be presumed; they must, rather, be found in conventional law specifically accepted by States, or in customary law generally accepted as such by the community of nations." For this rule, the United States cited and quoted Nicaragua v. United States. Does that case support the U.S. position? What did the ICJ in that case mean in saying that a State is only bound by rules accepted by the State "by treaty or otherwise?" (see U.S. oral argument before the ICJ at 60) (emphasis supplied).

 

10 There has been much written in the media on this subject in connection with recent military operations of the United States. Why is the United States involving lawyers so heavily in target selection? Is it obligated to do so? Has a norm developed or is it developing requiring such care? Are other States exercising similar concern with the lawfulness of potential targets?

 

11 As to the distinctions between "attributed" or "accountable" nuclear weapons and weapons not characterized as "accountable" and hence not counted, see 502 n. 7.

 

12 Some delivery systems and component parts are used for both nuclear and conventional weapons.

 

13 See, e.g., Diamond v. Oreamuno, 24 N.Y.2d 494, 248 N.E.2d 910, 301 N.Y.S.2d 78 (1969); Biondi v. Beekman Hill House Apt., Corp., 257 A.D.2d 76, 692 N.Y.S.2d 304 (1st Dep't 1999); Amfesco Industries, Inc. v. Greenblatt, 172 A.D.2d 261, 568 N.Y.S.2d 593 (1st Dep't 1991).

 

14 See Defense Production Act, 50 U.S.C. Appx. Sec.2157 (1994) (partly repealed; Susan Rousier, Note and Comment, Hercules v. United States: Government Contractors Beware, 19 Whittier L. Rev. 215 (1997)); Boyle v. United Techs. Corp., 487 U.S. 500, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988); In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984); Hercules Inc. v. United States, 25 Cl. Ct. 616 (1992)).

 

15 What does the fact that Israel is a known nuclear power but does not generally acknowledge its possession of such weapons tell us on this score? See e.g., http://www.fas.org/nuke/guide/israel/nuke/index.html.

 

16 The library will have these books on reserve.
 
 

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