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1. Utilitarianism is the most common expression of a still broader moral theory, consequentialism. "A consequentialist theory determines the moral status of an action exclusively in terms of the value or disvalue of the action's consequences. An action is morally correct if and only if it brings about a balance of value over disvalue greater than that of any other action (including doing nothing) that the agent could have performed. Different consequentialist theories characterize value in different ways, with the most popular form, utilitarianism, identifying it with pleasure, happiness, or preference. On any consequentialist theory, the use of violence brings about immediate disvalue in the harm and suffering it directly causes. The main condition of limitation on military action set by a consequentialist theory is, then, that the action is permitted only if its short-term and long-term consequences are of sufficient value to counterbalance the disvalue of the violence it directly involves. " Avner Cohen and Steven Lee, "The Nuclear Predicament," in A. Cohen and S Lee, eds., Nuclear Weapons and the Future of Humanity (Rowman & Allanheld, Totowa, 1986), p 1 I will hereafter cite the book as Future of Humanity

2. Among contemporary writers, the work of Ronald 1 elaborates this idea with striking clarity and ingenuity See generally, Law's Empire (1986) and Taking Rights Seriously (1977)

3 See Philip Alston, "A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law," Netherlands International Law Review, vol. 29 (1982): 322.

4. For a biting critique of efforts to transform every sort of interest, but particularly those frequently included in lists of " third generation rights," into a human right, see Philip Alston, "Conjuring Up New Human Rights: A Proposal for Quality Control," American Journal of International Law, vol. 78 (1984): 607.

5. The call for a right to development can fairly be seen as another way of expressing the demand for a New International Economic Order P T Bauer typifies the jaundiced reaction of Western conservatives: see, e g., P.T. Bauer and B S Yamey, "Against the New Economic Order," Commentary, April 1977, p 25.

6. For an on the whole positive response from Western writers, see 1. William Zartman, ea., Positive Sum (Transaction Hooks, New Brunswick, 1987).

7. P.T. Bauer is without question the most effective proponent of the views summarized in this paragraph. See especially Reality and Rhetoric (Harvard Univerity Press, Cambridge, 1984) and Dissent on Development (Harvard University Press, Cambridge, 1976).

8. "Technology Growth in Human Rights Perspective," paper presented at the United Nations University's workshop on Human Rights and Scientific and Technological Development, Geneva, 16-18 November 1987 (hereinafter "workshop"), p 15

9 The Covenant came into effect on 23 March 1976; within ten years over 80 states had adhered. For a comprehensive guide to interpretation of the Covenant, see L. Henkin, ea., The International Bill of Rights: The Convenant on Civil and Political Rights (Columbia University Press, New York, 1981).

10 See, e g., Richard Falk, "Nuclear Weapons and the Renewal of Democracy," in Cohen and Lee (note l above), Future of Humanity, p. 437.

11 For a very complete collection of the relevant documents, see Adam Roberts and Richard Guelff, eds, Documents on the Laws of War (Oxford University Press, Oxford, 1982).

12. The 1907 Hague Convention IX Concerning Bombardment by Naval Forces in Time of War would seem to be their earliest expression in an international agreement. But the distinction had been captured no later than the middle of the nineteenth century in national military manuals and rules of engagement

13. See Michael Walzer, Just and Unjust Wars (Basic Books, New York, 1977), pp. 127-128.

14. Walzer (note 13 above), pp. 127-175.

15. International Military Tribunal (Nuremburg) Judgment and Sentences, American Journal of International Law, vol. 41 (1946): 172-175, 220-221.

16. "What are the implications of the just-war tradition for the use of nuclear weapons in war? The use of nuclear weapons in war violates both the principle of proportionality and the principle of discrimination" (Cohen and Lee (note I above)). And see generally pp. 231-372 in the same volume. See also Walzer (note 13 above), pp. 269-283. So profound is the challenge to traditional ethics posed by nuclear weapons that it drew the National Conference of Catholic Bishops into the unceasing national debate over their use; see their "Nuclear Strategy and the Challenge of Peace: Ethical Principles and Policy Prescriptions," in Charles W. Kegley Jr. and Eugene R. Wittkopf, eds., The Nuclear Reader (St Martin's Press, New York, 1985), p. 43. For an astringent critique of the bishops' position, see Albert Wohlstetter, "Bishops, Statesmen, and Other Strategists on the Bombing of Innocents, " in Kegley and Wittkopf, p. 58.

17. For an elaboration of the discussion in the last three paragraphs, see generally Tom J. Farer, "The Laws of War Twenty-five Years after Nuremburg," International Conciliation (Carnegie Endowment, Washington, 1). C., 1971).

18. In May 1955 five individuals instituted a legal action against the Japanese government to recover damages for injuries allegedly sustained as a consequence of the atomic bombing of Hiroshima and Nagasaki. On 7 December 1963, the District Court of Tokyo, while finding that the claimants had no legal basis for recovering damages from the Japanese government, concluded that the United States had violated international law by dropping atom bombs on Hiroshima and Nagasaki. See Richard Falk, "The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki," American Journal of lntenational Law, vol. 59 (1965): 759.

19. "It was not until mid 1945, with the New Mexico test of the first bomb, that the full enormity of atomic power could be properly appreciated. . . In August 1941, after being informed that a weapon equivalent to 1,800 tons of TNT could be produced, Churchill noted his contentment with 'existing explosives' before recognizing that 'we must not stand in the path of improvement''' Lawrence Freedman, The Evolution of Nuclear Strategy (St Martin's Press, New York, 1981), p. 16.

20. Freedman (note 19 above).

21. The Just War: Force and Political Responsibility (Scribners, New York, 1968).

22. See, in this connection, Robert S. McNamara's estimate of the impact on Western Europe alone of fighting involving the use of tactical nuclear weapons, in "The Military Role of Nuclear Weapons: Perceptions and Misperceptions," in Kegley and Wittkopf (note 16 above), p. 153.

23. See, e. g., Richard Pipes, "How to Cope with the Soviet Threat: A Long-term Strategy for the West," Commentary, August 1984, pp. 13-14.

24. See Henry Kissinger, White House Years (Little, Brown, Boston, 1979), p. 1250.

25. A cross-sectional sampling of the literature might include the following books and articles: Ashton B. Carter and David N. Schwartz, eds., Ballistic Missile Defence (Brookings Institution, Washington, D.C., 1984); Daedalus, vol. 114 (Summer 1985); Daniel O. Graham, High Frontier: A New National Strategy (for Books, New York, 1983); Fred Charies Ikie, "Nuclear Strategy: Can There Be a Happy Ending?" Foreign Affairs, vol. 63 (1985): 824; Robert Jastrow, How To Make Nuclear Weapons Obsolete (Little, Brown, Boston, 1985); Union of Concerned Scientists, The Fallacy of Star Wars (Vintage Books, New York, 1984): Jonathan Stein, H-Bomb to Star Wars (Lexington Books, Lexington, Mass., 1984);James R. Schlesinger, "Rhetoric and Realities in the Star Wars Debate," International Security. vol. 10 (1985): 5.

26. The next generation Trident missile will, it is believed, have the accuracy now enjoyned exclusively by land-based missiles that makes them effective weapons against hardened targets like missile silos.

27. For a shrewd analysis of how arms control might affect the impact of SDI on the stability of the US-USSR strategic relationship, see Robert H. Gromoll. "SDl and the Dynamics of Strategic Uncertainty," Political Science Quarterly, vol. 102 (1987): 481, 496-499.

28. President Ronald Reagan, "Address to the Nation,'` Weekly Compilation of Presidential Documents, 28 March 1983, pp. 423-466;Jastrow (note 25 above).

29. See, e.g., the remarks of Richard DeLauer, former Under-Secretary of Defense for Research, Development, and Engineering in Government Executive, July-August 1983, and Donald Snow, The Nuclear Future: Toward a Strategy of Uncertainty (University of Alabama Press, 1983).

30. Gromoll (note 27 above).

31. Gromoll (note 27 above), pp. 489-491.

32. Gromoll (note 27 above), p. 495.

33. In preparing this section of my remarks, I have relied heavily on insights developed in a paper "Privacy and Regulating the New Reproductive Technology: A Decision-making Approach" written by my colleague at the University of New Mexico, Professor Antoinette Sedillo Lopez. Among other useful pieces in the available literature are the following: L. Andrews, New Conceptions. A Consumer's Guide to the Newest Infertility Treatments Including: In Vitro Fertilisation, Artificial Insemination and Surrogate Motherhood (St Martin's Press, New York, 1984); Note, "Sex Selection Abortion: A Constitutional Analysis of the Abortion Liberty and a Person's Right to Know," Indiana Law Journal, vol. 56 (1981); John A. Robertson, "Procreative Liberty and the Control of Conception, Virginia Law Review, vol. 6') (1983): 405; Handel, "Surrogate Parenting, In Vitro Insemination and Embryo Transplantation," Whittier Law Review, vol. 6 (1984): 783; Kass, "Making Babies - The New Biology and the 'Old' Morality," The Public Interest, Winter 1972, p. 318; Note, "Redefining Mother. A Legal Matrix for New Reproductive Technologies," Yale Law Journal, vol. 96 (1986): 187.

34. Charles Krauthammer, "The Ethics of Human Manufacture," The New Republic, 4 May 1987, p. 17.

35. Tamar Lewin, New York Times, 16 August 1987, p. 16.

36. Krauthammer (note 34 above), p. 1 H.

37. Krauthammer (note 34 above), p. 17.

38. Albuquerque Journal, 13 December 1987, p. B-3.

39. Albuquerque Journal (note 38 above).

40. Richard Reeves, Albuquerque Journal, 5 (October 1987, p. A-4.

41. Reeves (note 40 above).

42. Civil Liberties, Summer 1987, p. 3.

43. "Reviewing Privacy in an Information Society," University of Pennsylvania Law Review, vol. 135:707.

44. "Reviewing Privacy..." (note 43 above), p. 709.

45. See note 43 above, p. 711.

46. See note 43 above, p. 712.

47. See note 43 above, p. 713.

48. See note 43 above, p. 713.

49. See note 43 above, p. 718.

50. See note 43 above, p. 718-719.


Cohen, Avner, and Steven Lee. The Nuclear Predicament, In A. Cohen and S. Lee, eds., Nuclear Weapons and the Future of Humanity. Rowman & AIlanheId, Totowa, 1986.

Carter, Ashton B., and David N. Schwartz, eds. Ballistic Missile Defense. Brookings Institution, Washington, D.C., 1984.

Freedman, Lawrence. The Evolution of/ Nuclear Strategy. St Martin's Press, New York, 1981.

Jastrow, Robert. How To Make Nuclear Weapons Obsolete. Little, Brown, Boston, 1985.

Kegley, Charles W. Jr, and Eugene R. Wittkopf, eds.. The Nuclear Reader. St Martin's Press, New York, 1985.

Union of Concerned Scientists. The Fallacy of Star Wars.. Vintage Books, New York, 1984.

Waltzer, Michael. Just and Unjust Wars. Basic Books, New York, 1977.

Andrews, L. New Conceptions: A Consumer Guide to the New Infertility Treatments Including In Vitro Fertilization , Artificial Insemination and Surrogate Motherhood. St. Martin's Press , New York , 1984.

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