Nuclear Weapons and International Law 2025: Nuclear Risks through a Legal Lens

The International Section of

the New York State Bar Association

is proud to sponsor

Nuclear Weapons and International Law 2025:

Nuclear Risks through a Legal Lens

Thursday, January 30, 2025

9:00 a.m. – 6:35 p.m. via Zoom

(virtual reception to follow)

CO-SPONSORS

Fordham Law School, Center on National Security

U.S. Air Force Academy, Law, Technology and Warfare Research Cell

American Bar Association, International Section (invited)

Georgetown Law School, Journal of International Law

University of Pennsylvania, Center for Ethics and the Rule of Law

Catholic Peacebuilding Network  

Lawyers Committee on Nuclear Policy

Global Security Institute

AGENDA

9:00 – 9:30 a.m.        Introductory Remarks

·      Prof. Charles J. Moxley, Jr., Professor (Adj.), Fordham Law School; Principal, Moxley ADR LLC

·      Prof. John D. Feerick, Professor and Dean Emeritus, Fordham Law School

·      Domenick Napoletano, President, New York State Bar Association

·      William R. Bay, President, American Bar Association

·      Prof. Jeffrey Biller, Director, Law, Technology and Warfare Research Cell, United States Air Force Academy

·      Carlos Ramos-Mrosovsky, Chair, International Section, New York State Bar Association

·      Dr. Deepshikha Vijh, Executive Director, Lawyers Committee on Nuclear Policy

·      Jonathan Granoff, President, Global Security Institute; Senior Advisor, Permanent Secretariat of the World Summits of Nobel Peace Laureates

9:30 – 10:40 a.m.       Panel 1: Contemporary Strategic Environment and Nuclear Weapons Risks

Examining the contemporary strategic environment and related risks of intentional and inadvertent use of nuclear weapons, including the situations in Ukraine and the Middle East; Russia’s expansionism; China’s nuclear build-up and posture towards Taiwan; the United States’ continued focus on nuclear weapons and deterrence; and cyber risks and AI.

Faculty:

·      Moderator: Prof. Jeffrey Biller, Director, Law, Technology and Warfare Research Cell, United States Air Force Academy

·      Hon. Dr. Christopher Ashley Ford, former U.S. Assistant Secretary of State for International Security and Nonproliferation (also performing the duties of the Under Secretary of State for Arms Control and International Security)

·      Daryl G. Kimball, Executive Director, Arms Control Association

·      Hans M. Kristensen, Director, Nuclear Information Project, Federation of American Scientists

·      Dr. Shane Smith, Director, Institute for National Security Studies and Associate Professor, Dept. of Political Science, United States Air Force Academy

10:40 – 10:50 a.m.    Break

10:50 – 12:25 p.m.    Panel 2: Application of International Law to Potential Uses of Nuclear Weapons—Practical Considerations as to How It Works and Should Work

Examining requirements of international law, as applied in assessing the lawfulness of potential uses of nuclear weapons, including examination of how such analysis is and should be conducted at various stages from the design, development, and acquisition of such weapons through potential use of the weapons; consideration of what potential effects of the use of a nuclear weapon are or should be considered by legal advisors and decision-makers in assessing the lawfulness of potential uses of such weapons; consideration of how certain legal advisors or decision-makers must be of various potential effects of a potential use of a nuclear weapon for such potential effects to be relevant to the assessment of the lawfulness of such a use, including the legal significance of uncertainties and known unknowns as to potential effects of nuclear weapons uses in assessing the lawfulness of such uses; questions of what information, if any, legal advisors and decision-makers need to have to make the assessment whether the use of a nuclear weapon would be lawful, and whether the weapons use may proceed in the absence of such information; consideration of how one assesses the lawfulness of various levels of likelihood of potentially unlawful effects of such weapons; requirements under international law for per se unlawfulness of weapons uses; consideration of the continuing role, if any, of jus ad bellum once a State is engaged in armed conflict and jus in bello has become applicable, and of the extent to which threats are precluded under jus in bello; the role, if any, of legal advisors who have advised that potential uses of a nuclear weapon would be unlawful; and the question of whether nuclear weapons could lawfully be used in reprisal.

Faculty:

·      Moderator: Dr. John Burroughs, Senior Analyst, Lawyers Committee on Nuclear Policy

·      Lieutenant Colonel Travis Lieb, United States Army, Deputy Staff Judge Advocate at United States Strategic Command

·      Prof. Charles J. Moxley, Jr., Professor (Adj.), Fordham Law School; Principal, Moxley ADR LLC

·      Prof. Michael N. Schmitt, G. Norman Lieber Distinguished Scholar, West Point       

·      Allen S. Weiner, Senior Lecturer in Law and Director, Stanford Program in International Law

12:25 – 1:20 p.m.      Lunch

12:40 – 1:20 p.m.      Luncheon Reflections: Contemporary Realties as to the Roles of Nuclear Weapons and Nuclear Deterrence—A Conversation Between Thomas Countryman, Board Chairman, Arms Control Association and Jonathan Granoff, Introduced by Daryl G. Kimball, Executive Director, Arms Control Association

1:20 – 2:25 p.m.        Panel 3: Discussion: Contemporary Realties as to the Role of International Law Now and in the Future as Concerns Potential Uses of Nuclear and Other Weapons

Consideration of the extent to which international law concerning the use of force is meaningful? To what extent does––can––it play a significant role in restraining uses of force in armed conflict? What role has it played historically? What has the level of compliance been? What is the trend? Is its role potentially different as concerns nuclear weapons in light of their effects (to be reviewed)? What is the impact of the sheer level of armaments on prospects of warring parties’ compliance with international law? To what extent does the political leadership care about the requirements of international law? To what extent does the military leadership care about such requirements? To what extent does this vary from State to State? What are the real-world practicalities as to how and whether requirements of international law would make a difference in decision-making as to nuclear weapons in exigent circumstances? Does international law as concerns the use of force drop out in exigent circumstances, or does it continue in effect?

Faculty:

·      Moderator: Prof. Jeffrey Biller, Director, Law, Technology and Warfare Research Cell, United States Air Force Academy

·      Dr. Laura Grego, Senior Scientist and Research Director, Union of Concerned Scientists

·      Lieutenant Commander Christopher J. Hart, USN, J.D., Assistant Professor, United States Naval Academy

·      Brady Mabe, Legal Advisor, International Committee of the Red Cross (ICRC)

·      Colonel Theodore T. Richard, United States Air Force Judge Advocate, Staff Judge Advocate at Space Operations Command

2:25 – 2:35 p.m.        Break

2:35 – 3:15 p.m.        Keynote: Hon. William J. Perry, Secretary of Defense, 1994-1997: The Risks of Nuclear Weapons: How Concerned Should We Be––and What is the Role of the Lawyers?

3:15 – 4:45 p.m.        Panel 4: The International Law of Threat and Nuclear Deterrence—A Deep Dive 

Threat law: Examining the law of threat under jus ad bellum and jus in bello, and, again, the applicability, if any, of jus ad bellum in the course of armed conflict subject to jus in bello; consideration of what the term “threat” means in this context—what types of words or actions rise to the level of constituting a threat as a matter of international law; rulings of the ICJ and other courts concerning the law of threat, including the 1996 Nuclear Weapons Advisory Decision; consideration of generally accepted rules of law across the world’s legal systems concerning threats as a potential source of international law as to what constitutes an unlawful threat.

Nuclear deterrence: Examining the contemporary theory and policy of nuclear deterrence, including such considerations as the scope of the “vital interests” deterrence is designed to protect; the role and significance of ambiguity in the policy of deterrence; the level of intrusion on such interests that must be threatened to implicate deterrence; the extent, if any, to which the policy of deterrence threatens mutual assured destruction (MAD); the scope or extent of nuclear attack that nuclear deterrence threatens or implies; and the extent, if any, to which the policy of deterrence threatens self-assured destruction (SAD).

Nuclear deterrence and law: consideration of whether, or, at what point, and the extent to which deterrence rises to the level of constituting a “threat” as a matter of law; whether the policy of deterrence is specific enough to constitute a threat as a matter of law; whether and, if so, how the ambiguity element of the policy of deterrence affects the lawfulness of the policy; whether the full scope of nuclear attack posited by nuclear deterrence complies with applicable law; and consideration of whether nuclear deterrence may lawfully be used to address potential military challenges for which conventional weapons would suffice.

Faculty:

·      Moderator: Prof. Charles J. Moxley, Jr., Professor (Adj.), Fordham Law School; Principal, Moxley ADR LLC

·      Dr. John Burroughs, Senior Analyst, Lawyers Committee on Nuclear Policy

·      Prof. Claire Finkelstein, Algernon Biddle Professor of Law, University of Pennsylvania Law School

·      Prof. Anna Hood, Associate Professor, University of Auckland

·      Colonel Theodore T. Richard, United States Air Force Judge Advocate, Staff Judge Advocate at Space Operations Command

·      Prof. David L. Luban, University Professor and Professor of Law and Philosophy, Georgetown University Law Center

4:45 – 4:55 p.m.        Break

4:55 – 6:25 p.m.        Panel 5: Broadening the Discussion—Examining Additional Approaches and Legal Regimes Potentially Applicable to Risks Posed by Nuclear Weapons: A Brainstorming Session

Potential relevance of other areas of law and legal approaches in assessing the lawfulness of the threat and use of nuclear weapons, including: the overriding potential of law for addressing such matters; human rights law; fiduciary obligations of corporate officers and directors of defense contractors; crimes against humanity; crimes against the peace; universal jurisdiction; environmental law; legal principles applicable to potential inchoate violations of international law; legal regime applicable to obligations, if any, of nuclear weapons States to maintain security of their nuclear weapons; role of law students and lawyers in nuclear weapons policy and decision-making.

Faculty:

Opening Thoughts on the Potential of Law: Hon. Shira Scheindlin (U.S.D.J., Ret.), Of Counsel, Boise Schiller Flexner LLP

·      Moderator: Prof. Charles J. Moxley, Jr., Professor (Adj.), Fordham Law School; Principal, Moxley ADR LLC

·      David Gibson, Director, Fordham Center on Religion and Culture; Fordham liaison, Catholic Peacekeeping Network

·      Prof. Richard W. Painter, S. Walter Richey Professor of Corporate Law,

University of Minnesota Law School

·      Prof. Daniel Rietiker, Ph.D., International Law Lecturer, Lausanne University, Adjunct Professor, Suffolk University Law School

·      Randy Rydell, Executive Advisor, Mayors for Peace; Senior Political Affairs Officer, Office of the High Representative for Disarmament Affairs (Ret.)

·      Jules Zacher, Board Chair, Council for a Livable World; Executive Board Member, the Center for Ethics and the Rule of Law at the Annenberg Public Policy Center at the University of Pennsylvania

6:25 – 6:35 p.m.        Closing Reflections

·      Jonathan Granoff, President, Global Security Institute; Senior Advisor, Permanent Secretariat of the World Summits of Nobel Peace Laureates

·      Prof. Jeffrey Biller, Director, Law, Technology and Warfare Research Cell, United States Air Force Academy

·      Dr. John Burroughs, Senior Analyst, Lawyers Committee on Nuclear Policy

·      Prof. Charles J. Moxley, Jr., Professor (Adj.), Fordham Law School; Principal, Moxley ADR LLC

6:35 – 7:30 p.m.        Virtual Reception