August 23, 2024 • 51 mins
As global tensions rise, particularly with nuclear-armed states like Russia and China, the threat of nuclear conflict looms large. But what does U.S. law say about the use of nuclear weapons? How does international humanitarian law view these devastating weapons?
To answer these pressing questions, Andrew Jose sits down with Professor Charles Moxley of the Fordham School of Law. A seasoned litigator and expert in nuclear weapons law, Professor Moxley is the author of the influential work, Nuclear Weapons and International Law: Existential Risks of Nuclear War and Deterrence through a Legal Lens Volumes I-II.
He brings decades of experience and a wealth of knowledge to this critical discussion, exploring the legal, ethical, and humanitarian implications of nuclear weapons.
Listen in as Jose and Moxley tackle key questions: Are nuclear weapons inherently unlawful? What are the limitations of current non-proliferation efforts, and what might a future global treaty banning nuclear weapons look like?
Listen to the episode on your favorite podcast streaming platform: bit.ly/strategicwisdom.
_______
The views expressed by the podcast guests are their own and do not necessarily represent the official positions of Andrew Jose, Strategic Wisdom with Andrew Jose, and Andrew Jose Media.
______
Strategic Wisdom with Andrew Jose is an initiative of Andrew Jose Media.
To answer these pressing questions, Andrew Jose sits down with Professor Charles Moxley of the Fordham School of Law. A seasoned litigator and expert in nuclear weapons law, Professor Moxley is the author of the influential work, Nuclear Weapons and International Law: Existential Risks of Nuclear War and Deterrence through a Legal Lens Volumes I-II.
He brings decades of experience and a wealth of knowledge to this critical discussion, exploring the legal, ethical, and humanitarian implications of nuclear weapons.
Listen in as Jose and Moxley tackle key questions: Are nuclear weapons inherently unlawful? What are the limitations of current non-proliferation efforts, and what might a future global treaty banning nuclear weapons look like?
Listen to the episode on your favorite podcast streaming platform: bit.ly/strategicwisdom.
_______
The views expressed by the podcast guests are their own and do not necessarily represent the official positions of Andrew Jose, Strategic Wisdom with Andrew Jose, and Andrew Jose Media.
______
Strategic Wisdom with Andrew Jose is an initiative of Andrew Jose Media.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
August sixth and August ninth. This year marked the seventy
ninth anniversary of the United States dropping atomic bombs of
the Japanese cities of Hiroshima and Nagasaki. This would be
the first time nuclear weapons were used in armed conflict,
but certainly not the last. During the Cold War, possession
of large amounts of nuclear weapons gave the United States
(00:23):
and the Soviet Union enormous power, power that, coupled with
conventional strength, enabled them to divide the world into two
poles mutually A short destruction meant that neither power would
directly engage in a hot war, but would set their
proxies against each other, bringing more instability. With the dawn
of the multipolar era, more powers have obtained nuclear weapons
(00:48):
and are continually on the track to obtain nuclear weapons.
You're listening to Strategic Wisdom with Andrew Jose. I'm Andrew Jose,
a Washington, DC based security policy and and news reporter,
bringing you timely analyzes and commentary on issues in international relations,
war and security policy. Will nuclear weapons and mutually assure
(01:12):
destruction bring peace? As some claim? How does the use
of nuclear weapons fit in with international humanitarian law? What
does US law say about when the US could use
nuclear weapons. Joining me today to answer these questions as
Professor Charles Moxley of the Forham School of Law. Moxley
(01:32):
is the author of the book Nuclear Weapons, International Law,
Existential Risks of Nuclear War and Deterrence through Legal Lends,
Volumes one to two.
Speaker 2 (02:17):
Charles J.
Speaker 1 (02:18):
Moxley, Junior is an experienced litigator, arbitrator, mediator, and law
professor at Fordham Law. He has spent over thirty five
years as a litigator in large and complex commercial securities,
insurance in other cases throughout the United States, while teaching
arbitration law and practice and international law, as well as
(02:39):
litigation related subjects including evidence, civil procedure, New York practice,
and professional responsibility. He is a prolific analyst on nuclear
weapons law, having taught the subject since the early two thousands.
Moxley has also published numerous law review articles on the
subject of nuclear weapons and international law law, including in
(03:01):
the Fordham International Law Journal. He has also spoken frequently
on the subject at the United Nations, the New York
City Bar Association, and the International Session of the American
Bar Association. Charlie, Welcome to the show.
Speaker 2 (03:16):
Thank you so much, Andrew, I'm delighted to be here.
Speaker 1 (03:19):
As tensions with Russia and China rise, there are concerns
that these tensions would erupt into a nuclear war. What
does the law here in the United States say about
the use of nuclear weapons? Is it a hard and
fast rule, as many assumed, that the US uses nuclear
weapons solely for defensive purposes? Or does the law allow
(03:41):
us to use these weapons for offensive cases?
Speaker 2 (03:48):
This area, Andrew, of the law and is particularly international
law that applies to the use and threat of use
in dugli weapons. This is a huge topic. The type
written manuscript of my book reads sixteen hundred pages, so
it's it's it's hard to summarize it, but there is indeed,
(04:11):
and I think this is a threshold insight for all
of us as we think about it. Uh, there is
a body of law, international law that applies to the
use and the threat of use of nuclear weapons. And
(04:32):
this is not an esoteric point or a controversial point
in any way. It's acknowledged by the United States, by Russia,
by China, by other nuclear weapons countries that there is
this body of law. And so, as you've asked in
our in our preparatory discussions what is this body of law?
(04:57):
And I think people will find it interesting that the
body of law that applies here is the body of
international law, including particularly the law alarm, conflict, and other
areas that applies to conventional weapons general. Right, there are
(05:18):
nuanced areas of international law that relate to nuclear weapons.
But as a broad opening perspective on this discussion, the
international law that applies to the threat and use of
nuclear weapons is the same body of international law that
(05:39):
applies to the use of conventional weapons. And this is
a well formulated body of law. It's set forth in
a number of multinational conventions to which the United States
and other nuclear weapons countries are members, and it's set
forth in so called customary international law, which, for you
(06:04):
and those of your audience who are involved to some
extent in US law and the common law, customary law
is in a sense analogous to common law. It's not
part of a statute or a convention and a multinational
treaty necessarily, but it is a body of law that
(06:24):
is broadly recognized by countries throughout the world, essentially all
the countries of the world broadly speaking. So that's what
customary law is. The area of international law, including conventional
law and customary international law, includes a number of principles, right,
(06:49):
a bunch of rules and principles that are the rules
that apply to the use of nuclear weapons as they
apply in fact to the uth some conventional web.
Speaker 1 (07:02):
If you were to expound on what we consider to
be customary international law, how international is what we assume
to be customary international law. Often time of criticism that
comes from people in the Third world and also the
non Western world is that a lot of things that
are considered to be customary international law are written for
(07:24):
by the winners, that is the West. So could you
expand on this customary international law and how universal it is?
Speaker 2 (07:36):
Yes, I think that's a very good question. The area
or part of the fabric of international customary law that
is relevant to our discussion today about is the use
Is it law for to use nuclear weapons or to
threaten to use them? Is the policy of the terrence
(07:58):
law for or not? There are five or so central
principles and they're broadly recognized. I mean, there was, as
you may recall, I know you're a student of this
area and done a lot of work in it. There
was an advisory case that the General Assembly of the
(08:22):
United Nations took to the International Court of Justice, the
ICJ and the mid nineties, and the ICJ issued a
decision on the topic, and the topic was the lawfulness
of the threatned use of nuclear weapons. And at that
(08:42):
series of hearings around that case, you had countries from
around the world, and you had on the panel of
judges from the ICJ judges from the world's legal systems.
So I think, Andrew, in answer to your question of
how broad this is, I think these principles are broad
(09:06):
and broadly accepted, and I don't think it would be
a fair characterization to say that they are victor's rules
that have been played out following a war. I think
these are or very broadly recognized rules across the world's
(09:29):
legal systems. And I think if you think it makes sense,
I'd be glad to kind of walk us through what
the five or six main principles are here, and then
we could if you think it makes sense, you know,
we could talk about individual ones of them, but I
(09:49):
think it's worth just looking at, you know, what are
the rules. If that makes sense the little.
Speaker 1 (09:56):
Could you walk me through those principles?
Speaker 2 (10:00):
Yes, let me do that, and I really hope this
will be helpful with it being interesting for people. And
at first, let me name that the rule of distinction
or discrimination essentially synonymous terms the rule of proportionality, the
rule of necessity, the law has to reprisal reprisals, and
(10:28):
the rule of precaution. So while one can expand the discussion,
these are, to my study and observation, the primary rules
that most fundamentally apply no matter who you are, whether
(10:48):
you're a lawyer within a nuclear weapons country, in the
law department where you're a military person and responsible for
state's nuclear weapons, or you're in an n g O,
or you're at the UN and the disarm Limit Agency,
wherever you are, and you're look, if you're looking at
(11:11):
the question are nuclear weapons lawful, you're going to have
to look at these rules.
Speaker 1 (11:16):
So would you say they hail from Michael Waltzer's Just
for theory and Thomas aquinas, Are these the roots of
these principles?
Speaker 2 (11:25):
I mean, I think I think it's a good point,
and it's an interesting It would be a quite an
interesting study to take any one of these rules back.
But I take it as a general matter that they
go back and and and indeed, here's a point before
we delve into you know, what they are, what they mean.
(11:46):
I take it to be the case, which sort of
supports your inference that these go back very early in
human intellectual history and theory about law and justice and
right action and so forth. These rules are part of
the New York Enal Code, where I live and where
(12:07):
I'm admitted as a lawyer, but certainly throughout the United States,
I think throughout the world. I mean, I'm obviously, you know,
not an expert on legal systems of of of of
of all other countries of the world. But in my
book I had a group of students working with me
(12:28):
on some of these principles, who went through and found
summaries of some of these principles in the law of
legal systems throughout the world. But these five or so
rules I've talked about are fundamental. I take it they
would go back to Aquinas, and they would go back
to the early intellectual leaders, you know, in the West,
(12:48):
but I would assume in the East and in all
other legal systems, the same kind of rules are there
in the criminal law and to some extent in civil law.
These rules are just plain fundamental rules, and let me
just egglemitt it and walk through them, and then you
(13:11):
can give me your Saint Andrew of you know what
makes sense in terms of whether to follow up on
more detail on them. But the first of them, which
has been called the grandfather of the rule of these rules,
is the rule of distinction or discrimination, and it means
that in war. But you know, the same thing is
(13:34):
true if a police officer under municipal law in the
United States, a person lawfully using force is legally constrained
to use it in a way that you know you're
distinguishing appropriate targets of the use of force. And so
(13:54):
one should not under international law, whether it's a conventional
weapon or a nuclear weapon or a chemical and biological weapon,
although they're in a somewhat different category now because there's
a convention on the latter or two. One needs to
not use a weapon that can't distinguish a military target
from a civilian target, or not use a weapon that
(14:17):
is capable of distinguishing between those kinds of targets, not
to use it in a way where where it's in
a circumstance where it can't distinguish. So in the use
of force, the US, Russia, China, any country that has
these weapons, or has any kind of weapons is subject
(14:38):
to this rule of distinction that you can't it's unlawful
to use weapons that can't distinguish between legitimate and illegitimate,
lawful and unlawful targets. And it's unlawful to use even
otherwise lawful weapons in a way or circumstance where they
can't distinguish. Right, So that's the rule of distinction. Broadly,
(15:04):
there's a rule of proportionality. There's several of them, but
the rule under a law of armed conflict or international
humanitarian law of proportionality is that the effects on the
collateral effects on civilians and protected persons and objects shouldn't
(15:30):
be disproportionate to the military value. Right, you can, you're
going to strike a target. In the reality of war
of armed conflict, it will happen that civilians will be
in the way and you will harm civilians. But the
rural proportion you know, the rule of distinction says you
(15:52):
have to use your weapon in a way to distinguish
the lawful target. The rural proportionality says, well, even though
we know you know, and this stuff is not intended
to be unrealistic. It's supposed to be realistic in difficult circumstances.
Proportionality means that you can't use a weapon who effects
(16:13):
are going to disproportionately affect civilians and other protected persons
and objects. So that rule of proportionality is a serious rule,
and it applies here. The third of the central rules
(16:34):
is the rule of necessity, and it says that while
you can use weapons as necessary and as long as
they comply with distinction and proportionality to advance your interest
in the war or the armed conflict, you can't use
a level of force beyond that which you really need
(16:57):
for the circumstance. Right, If you can achieve your military
objective in a particular instance through a lower level, a
lower decibel level, that's not the right frame, but a
lower level of force, one is supposed to do that
(17:18):
within reason. So that's the rule of necessity. And we
can talk about what these things mean. But that would mean,
for instance, that if one could achieve one's military if
one were a nuclear weapons country. But even the other
rules that would be applicable to the side, if one
(17:39):
could achieve one's military objective through the use of conventional weapons.
One should not use nuclear weapons because obviously they are
at a much higher, you know, level of extent of
force and destructiveness and effects. So that in a broad
sense I'm oversimplifying, is the rule of necessity. And then
(18:03):
the rule of precaution is very broad, and it says that, well,
we have these rules of onmed conflict and states, governments,
the civilian leadership, the military leadership are supposed to comply
with these rules. But obviously the government and military work
(18:26):
through individuals people people like you and me and your audience, right,
And so a government and a military have an obligation
to take reasonable precautions in all aspects of their planning
and implementation of the use of force and planning for it.
(18:50):
It's required to take reasonable precautions to do it in
a way that will comply with international law. So that's precaution.
And then of the main rules, the one other one
that I'll focus now is, as you mentioned earlier, Andrew,
the rule the law as to repriseal and reprisals are
(19:14):
an area of law where if one's adversary is violating
the law, one has kind of a leave to violate
the law oneself. But there are limits on that. It's
supposed to be limited and effect. It's not supposed to
be more than is needed in the occasion. It's not
supposed to be disproportionate to what you're responding to. So sorry,
(19:42):
I've kind of gone on in a long monologue, and
I wanted to have a discussion, But this is a
I think it's a good kind of summary introduction of
points that are not contra versil as to what these
rules are that apply to nuclear weapons, and broadly speaking,
(20:07):
what they mean.
Speaker 1 (20:09):
From my understanding, it would be largely difficult for strategic
nuclear weapons of the sort we saw being deployed in
Hershem and Nagasaki to fall under illegal use if we
have these principles. But what about tactical nuclear weapons? How
would you categorize that? Do you think there's a possibility
we could use tactical nuclear weapons would low yield in
(20:31):
a way that adheres to these principles.
Speaker 2 (20:35):
Yes, you've put your finger andrew on a central point, right,
you're saying, Okay, you're sort of anticipating the point I
was leading towards that. Certainly, as to higher yield nuclear weapons,
(20:56):
as you say, it's hard to imagine how they can
comply with these rules that I have described of distinction, proportionality,
and the necessity recaution, lawful reprisal. Because their effects are
so great they can't distinguish. They're not controllable, so you
(21:20):
can't know if you're thinking about if you're if you
or either the lawyer advising the military, or the president
or the civilian leadership, and you know it would it
be lawful to use these weapons, since the lawfulness turns
on the effects of the use, and since these weapons
are so uncontrollable that we can't know the effects, your
(21:42):
point is I think absolutely correct that it's it's essentially
not possible. Although I have to say, I mean, we
could talk about this. There are people who disagree with this. Now,
people disagree with the conclusion that it's unlawful. It's just
plain clearly I would say, essentially per se unlawful to
(22:07):
use high yield nuclear weapons. So we can come back
to that. I mean, I mean, that's an important area,
and it is an area where the proponents and the
critics of nuclear weapons as an instrument of national defense
and warfare disagree, right, But your point about low yield
is one that has to be addressed. First the comment
(22:31):
the term low yield is not defined definitively by anybody,
and actually the yields of the weapons that were used
on Hiroshima and Nagasaki in the range of fifteen to
(22:51):
twenty you'll see different kiloton estimates or numbers as to
the level those would be regarded by some as low
yield now or certainly relatively low yield, because, as you know,
the chiloton age, the extent of the destructiveness of a
(23:13):
nuclear weapon is measured by its kilotonage, the thousands of tons,
and the typical nuclear weapons that we have in our arsenal,
although we have dial a yield weapons that have a
range of yields, but the typical yield is in the hundreds,
three hundred and fifty four hundred kilotons. There are megaton
(23:37):
nuclear weapons which are of even huger destructiveness, although the
United States at this point doesn't, as I understand it,
maintain any nuclear weapons in the megaton range. But going
back to your point, Andrew, what about low yield? What
(23:58):
about you know, one kiloton, two, kiloton, three or even
sub kiloton, right, I mean, there are tactical nuclear weapons,
which means in a sense low yield, although there are
different definitions, but in a sense low yield that are
(24:19):
even below a kiloton, and so there's different levels of
answer to that. Firstly, the factual inference that's behind your point,
which is a good one, is there a distinction here
is a correct factual inference that if you compare the
(24:41):
effects of any one tactical nuclear weapon, which is for instance,
the concern we've had that Russia that you know, putin
might use them in Ukraine this evening, right. I mean,
it's not as if this isn't part of the news
cycle now. It is the fact that these low illo
(25:01):
nuclear weapons, you know, are lower eel and their spread
of effect is much less. And so you know, it's
interesting if one goes back to that case that I
refer to, that the advisory opinion. It was brought by
the General Assembly of the UN to the International Court
(25:23):
of Justice the ICJ at the mid nineteen nineties, the
defense by the United States of the lawfulness of nuclear weapons,
because the US was a nuclear weapons country, with the
UK and France and Russia and China and other nuclear
weapons countries defending the lawfulness of their plans, their policies
of deterrence. The defense the US used that I cover
(25:46):
this in my book at some length because it's an
important point. The defense was that, oh, here, you know,
the critics are exaggerating the effect of the use of
these weapons because we have low yield weapons that we
can deliver with precision to a target and they'll have
(26:07):
limited killer tonnage, they won't spread that much radiation, and
they're not going to cause a lot of these effects
of nuclear weapons that are potentially existential, right, I mean,
a broad scale war between the US and Russia. There
was that there were authoritative estimates that were made. There
(26:28):
was a big study that came out in August of
twenty twenty two that you could find that you your
readers can find on the internet where very qualified scientists
from around the world spent an extensive amount of time
and they modeled the effects of a nuclear war between
the US and Russia. And what did they find. They
(26:50):
found that the number of deaths from such a war
get this, five billion people. I mean that's most that's
most of the population of the world, so it's huge.
So on your point, well, what about these tactical weapons,
you know, these low yield Yes, they're lower yield. Yes,
(27:12):
they're less destructive. Yes they're not going to destroy the
world or be existential you know, anyone strike. But here
is the fallacy, Andrew. To my thinking, here's the fallacy.
And this is why when I received your invitation, and
(27:35):
knowing your podcast and that your audience is young folks
in large measure like yourself, in graduate school and in
internships and with an interest in these areas, it's why
I was so pleased you'll be able to have this
discussion with you. Here's the fallacy, here's the fact's see,
(28:02):
you know, and and frankly, this isn't me talking just
from a personal perspective. I mean, I have several chapters
in my book which just came out in the last month,
on this, and you and your audience can research its
independently if you like. There is a huge body of
(28:22):
literature out there that the use of low yield nuclear
weapons between nuclear powers has a high likelihood of escalation.
So that's the point I think, Andrew, when people who
are defending the potential use of nuclear weapons by saying, oh,
(28:46):
it'll be low level, the risk is the escalation thing.
And you know, it's not as if this exists in
a vacuum because under deterrence theory, we in the US,
our military and civilian leadership in this area have spent
ever since the Cold War extraordinary efforts and initiative and
(29:12):
time and expense trying to anticipate what the other side
would do, you know, and how you work the terrence.
And there's a high level of awareness that the risk
of the escalation of going up the escalation ladder is
high because each side would want to show resolve, and
(29:33):
so maybe they'd go up a little bit. You know,
one side would use a kiloton and one of them
and the other side might use two one kiloton bombs
or maybe they but then the first guy would say, well,
the second guy's doing this and will go up, and yes,
if we could keep it, if they could keep it
to you know, low yield, it would be horrible. I
(29:59):
mean if a low YEO nuclear weapons hit a major
city in the world, I mean it would it would
destroy it could it could destroy that city at huge,
huge numbers of people. Right, But the the risk to
human life and humanity, the existential risk, is that there
(30:21):
is this high likelihood of escalation, right, I mean, I
mean that's the that's the reality. I think I've got
to stop and you know, see what you know, if
you have a have a direction you'd you'd like to
see is going. But I think that's reality.
Speaker 1 (30:34):
Before we go to the general principles about deterrence when
justifying the nuclear bombings Energyma Nagasaki. I don't know if
it's a legal argument, but one point that proponents of
the bombing often bring up is that if we never
dropped the nuclear bombs on Hiroshima and Nagasaki, more American
troops would have died. Therefore, because we have stopped more
(30:56):
American troops from dying, and presumably more Japanese millions from
dying in a land invasion of Japan, it was justified
for the United States to use nuclear weapons this line
of reasoning, and I'm not referring to the specific line
of reasoning and the specific case which is Hersheim and Nagasaki,
But is there any provision in UST law and international
(31:17):
law that addresses this possibility whereby if there's a large
amount of risk to one's own troops, then the use
of nuclear weapons has justified. I just want to hear
your thoughts and insights on that matter.
Speaker 2 (31:30):
I mean I think you raise a good question. Isn't
the case isn't it the case that the doesn't day
rategic reality? It's totally different from what existed in nineteen
(31:52):
forty five at the end of the Second World War.
It's just totally different. The US was the only country
that had these weapons. You didn't have that risk of escalation.
I was just talking about. You had a level of
risk that while arrens and I think the people who
(32:13):
made the decision to use it knew that it was
going to be a stupendous you know, a bomb in
each case with stupendous effects, It wasn't what we face now, right.
So I understand your question, and I've looked at your podcasts.
I see you have many, you have numerous podcasts on
(32:35):
interesting subjects across the area of foreign affairs, right, And
so it's so interesting and this is an interesting area, right,
I mean, does the terrens protect our country or if
we were in Russia or China were to protect our
country from the perspective of those countries, you know, And
(32:57):
in a sense, I think this is the greatest threat
and in a way that if you ask me, you know,
what is a message that I would like to get through.
Haven't spent so many years writing this book. It is
that we need, and really for you younger generation, right,
(33:18):
because of the generation I grew up during the Cold War,
where we had an awareness when I was in school,
when I was in college, I mean, we had an
awareness of the risk to use in nuclear weapons. But
other than yourself and people like you who are graduate
students or interns or working in the field, or in
(33:40):
the Congress or in the government somewheres, the level of
concern about these areas. So my perception is not that great.
It has receded from our consciousness because we've bought into
the idea that, well, deterrence is a policy and it's
(34:00):
a nice thing and it saves us from a lot
of risk and a lot of death because we threaten,
you know, adversaries that don't do anything that is inimicable
to you know that injures our interests or will come
back with a huge, extremely destructive response. And so it
(34:22):
sounds like a good bargain, right, But what's that term
that we all learned when we were in college about
Faustian bargains? You know, it's it's an unfortunate it's a
failure of imagination to buy that rationale, because deterrence is
not a theory, it is a readiness. It is an
(34:45):
acquisition of billions of dollars. I mean, I have the
numbers up here on my screen somewhere is from the
book of you know, over a ten year period, which
we're in maybe the third year of now at the
estimate from the Congressional Budget Office, with something like seven
one hundred and eighty billion dollars for nuclear weapons. You know,
it's a huge amount of money. It's a huge expenditure
(35:07):
of human personnel and training, you know, to be ready
to use these weapons. And the answer to your question
of you know, saving time and saving life by using
these weapons, we have a lot of our weapons on
high alert levels, right, and the Russians have it as well. Ironically,
(35:28):
by the way, China doesn't. China has what I would say,
or has had for years predominantly what I would call
a much more enlightened policy where they sell And this
is something you know that you and your you know,
and people a younger generation might want to think about,
(35:49):
right because you all are going to have influence. You
have influence now with the government and with the legislature
and with the people in the in the agencies. You
know what China does is they separate out the nuclear
warhead from the delivery vehicle, and they don't have things
on the high alert levels. But as long as you
(36:09):
have this high alert level, Andrew, I don't think your premise,
you know that you were asking me about from the
first the Second World War perspective. You know, I don't
think that's how it works today, that well, we're going
to save people's lives or anybody by using these weapons.
I mean, we're going to risk getting much more horrible repercussions.
(36:31):
But let me mention one of the Let me mention
one thing, Andrew. That for you and for your your generation, right,
many of you, as I you know from talking with
you earlier, many of you all are in graduate school
or in law school, and you're interested in international affairs,
(36:53):
international law, international relations. And I've talked as you said
if Ford in law school for years. Students and professors
alike are looking for areas to write in where you
can make a difference, where you can have an actual impact.
(37:15):
It's not just some theoretical thing that's another article and
nobody will ever read or care about it. There are
in this area that I've written about in my book.
It's an area that frankly is not It hasn't gotten
much attention in the literature. Right. If you google nuclear weapons,
(37:39):
you'll get untold you know, probably millions of hits, right,
but if you hit the legal piece, you're not going
to find much. You may find me in there a
couple hundred times, and some of the people I work with,
But I mean, there's just a handful of this. It
hasn't gotten the attention it deserves. And for your generation,
(38:02):
I believe there is an extraordinary opportunity to write stuff
and develop the law. I did with a number of others,
I organized a conference at the end of twenty twenty
three on this field of nuclear weapons and international law,
and the proceedings of it were published by the Georgetown
(38:24):
Journal of International Law at the Law School, and you
all can find it if you google it. They did
a special edition they came out about two months ago,
which was the proceedings of the conference, and as part
of that or I could send it to you if
you wanted to share it with your readers. I prepared
a list of issues that I prepared for the faculty
(38:47):
of the conference, and then we talked about them in
the conference. And my kind of invitation to you and
your colleagues and to the younger generation, take this list
and take it to the next level, you know, figure
out your analysis of the answer to these questions, which
(39:11):
are questions that have not been much addressed in my
book that just came out. I mean, any number of
these issues that I address. I hate to say it.
I mean I was just one of the first people
to address them. And I'm not saying, you know, somebody
else will judge whether I did it well or not well, right,
I mean, not for me. But the issues, unquestionably are
(39:34):
very central issues. And I think it's you know, what's
that expression. You know, there are a lot of very
juicy issues to be looked at in ir in IL
around nuclear weapons threaten use.
Speaker 1 (39:51):
If you were to suggest some policy recommendations and maybe
point out to any loopholes that exist or any issues
that exist some current laws about nuclear weapons for the
future generations to fix. What areas would you highlight as
the main areas that need new laws, new policies, new
legislation or loophole fixing measures to be implemented.
Speaker 2 (40:14):
In Yeah, I mean I think in a way, the
main area that I need to work on with people
I know, and you and your generation needs to work
on is the policy of deterrence, because the US and
Russia are making, in my judgment, a significant failure of
(40:40):
strategic thinking by having these weapons on a high alert level,
with very short time for decision making, and with obvious
technological issues as to potential human and equipment failure, particularly
as AI inevitably kicks in. So we've created a sit
situation that is very risky and we should step back
(41:04):
from it, not you know. While one can say, and
you were talking about somistic thinking and just war, yes
we should think for reasons of justice and human potential
to do the right thing. But I'll take the discussion
to the next level. We should think because of human survival.
(41:27):
Whether we're a patriot in one country or another or
however you know, we think about these things. It is
unquestionable that there is a huge risk the human life
and survival because of the high alert level and the
(41:47):
thousands of these weapons we have ready to go, and
the potential for events lurching out of control, which is
you know, historically you were talking about World War one,
and we were talking earlier about World War one and
World War two. It's a risk, so I hope this
(42:08):
comment is helpful, Andrew. Andrew, my answer to your question
is that my suggestion would be to focus on the
risk of our current policies and on, if not doing
the right thing, at a minimum, surviving, which I think
gives us a basis to communicate with people in other countries,
even countries adversary with us now, because you know, unlike terrorists,
(42:33):
who it's impossible to one would think to deter a
terrorist because the terrorists may want to die right and
want to be a martyr. But government leaders, country, country leaders,
I mean, you could add your rational leaders and that's
a risk at times, right, but countries want to survive.
So my rawdest you know, I guess suggestion an answer
(42:57):
to your question of what is the main thing I'd
suggest is work on awareness of understanding how out of
reasonable proportion we've let the risks become and start communicating
with people from other cultures and countries to work on
(43:18):
survival tactics to just lessen the risks. And I know
you're a big you know you're studying ir and and
I'm sure you've had any number of courses, very interesting ones.
I can imagine it's gw you know, on what is
(43:39):
one's theory of international relations? Right? And one theory, of
course is hegemonated. We want to be stronger than our adversary.
But a theory that I think the US and the
Soviet Union had reached by the end of the Cold
War was a sense that the strategic milieu that made
(44:07):
sense was one of mutual security. That my country is
safe if my adversary feels that they're safe and don't
feel a need or you know, the high alert levels
and the quick reactions, and if we're able to communicate.
So I think mutual security. I don't know if that's
(44:30):
what you're hearing in graduate school now. I'd be interested
in that, Andrew, But I think we need to get
back to that, and it's not where we are. I
don't believe.
Speaker 3 (44:39):
What would you.
Speaker 1 (44:40):
Say has been a cause of failure in the current
non proliferation regime? Is it the fact that the non
proliferation regime we have a question, did not account for
in multi foiler world where countries that are not the
Soviet Union or Russia and the United States or China
have slowly begun to obtain new clear weapons. Or is
(45:01):
there something that we have done wrong in coming up
with the global non proliferation regime that it has led
to countries like Iran and North Korea despite best efforts
from Washington and other countries to stop them obtaining nuclear weapons.
Speaker 2 (45:21):
Again, we could have a couple of books on this right,
a propieted that's a good point. I think that was
starting with Russia. Obviously people disagree on this right, but
after the fall of the Soviet Union, we added choice
(45:42):
and there were even discussions then should we bring Russia
into NATA? You know, but the nature of the relationship
was an open question. But the approach that we took
in the US, and you know, it's a big historical debate.
Was this a huge mistake? But we moved NATO more
(46:03):
and more to the east and closer and closer to Russia. Now,
would we have the current aggressiveness of Russia if we
hadn't done that, would have would it have happened any
would Russia because of a sense of you know, a
Russia file thing, have have wanted to regain the Soviet
Union and the empire. I mean, that's a debatable question, right,
(46:28):
and and I'm not the expert on that, but I mean,
I know that's an issue. But uh, to my judgment,
we made a mistake in pushing ever closer to Russia's
borders and making it harder because we had an arms
control regime obviously throughout the Cold War, and then at
(46:51):
the end of the Cold War we made great progress.
We took the weapons down. We did it under Republican
and democratic administrations. We took the weapons down and we
made a lot of progress for a while. But then
in recent years arms control has been dead and it's
going to be hard to negotiate anything with Russia, I think,
(47:12):
although I wouldn't give up and say it's impossible until
the Ukraine situation has resolved and hopefully in a way
that doesn't know exacerbate, but in the fullness of time,
there will be opportunity for arms control again, you know,
And that's what we had doing the Cold War. What
(47:34):
I advocate for, you know, on a multilateral basis. I'm
not talking unilaterally, but working out of this sense of
survival towards extensive arms control and ultimately abolition, on the
sense that we the weapons are too risky, they too
much take war beyond just a battle between two countries
(47:59):
to threat the whole world. Really, so the objective should
be abolition very hard, and I don't want to be
unrealistic here, But to answer your question, I think the
failure has been that things got out of control. Now,
what happened with Iran? I mean I don't know. I mean,
we went into Iraq and we with hindsight, I mean,
(48:21):
that was a that was a horrendous blunder, and the
George W. Bush administration did not have the basis for
it that we were told and everybody and most of
the Senate believed, you know, in the leadership, including the
top leadership on both sides of the aisle, believe we had.
You know, So if you're a nuclear weapons country, it's
(48:46):
not irrational to believe, well, or if you're if you're
a country thinking of getting nuclear weapons, it's not irrational
to think, well, I'll be safer if I have them.
You know, it's it's asymmetrical power. So I think that's
the problem. And the answer to it is, you know,
(49:06):
it's complex, and it's a whole discussion, but it's something
we all need to be working on and your generation.
You know, I don't know if you can count on
you know, my generation, your parents generation, resolve in it.
I think you all have to figure out, you know,
and be working on the answers and be ready for
answers yourselves.
Speaker 1 (49:27):
Ladies and gentlemen, you just listened to Charles Moxley, author
of the book Nuclear Weapons and International Law, Existential Risks
of Nuclear War Into Turns through Legal Lens, Volumes one
to two. Charles Moxley, thank you for your time.
Speaker 2 (49:43):
Thank you so by dandre I really appreciate the opportunity
to talk with you, and you and you're following on
your podcasts wonderful Good.
Speaker 3 (49:50):
Strategic Wisdom with Andrew Jose is an initiative of Andrew
Jose Media. The views expressed by guests on this show
do not necessarily represent the official positions and opinions of
Andrew Jose, Andrew Jose Media, and Strategic Wisdom. Thank you
for listening to Strategic Wisdom. Be sure to follow and
(50:11):
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Speaker 1 (50:29):
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Speaker 3 (50:43):
For more details, visit Strategicwisdom dot substack dot com sh
August sixth and August ninth. This year marked the seventy
ninth anniversary of the United States dropping atomic bombs of
the Japanese cities of Hiroshima and Nagasaki. This would be
the first time nuclear weapons were used in armed conflict,
but certainly not the last. During the Cold War, possession
of large amounts of nuclear weapons gave the United States
(00:23):
and the Soviet Union enormous power, power that, coupled with
conventional strength, enabled them to divide the world into two
poles mutually A short destruction meant that neither power would
directly engage in a hot war, but would set their
proxies against each other, bringing more instability. With the dawn
of the multipolar era, more powers have obtained nuclear weapons
(00:48):
and are continually on the track to obtain nuclear weapons.
You're listening to Strategic Wisdom with Andrew Jose. I'm Andrew Jose,
a Washington, DC based security policy and and news reporter,
bringing you timely analyzes and commentary on issues in international relations,
war and security policy. Will nuclear weapons and mutually assure
(01:12):
destruction bring peace? As some claim? How does the use
of nuclear weapons fit in with international humanitarian law? What
does US law say about when the US could use
nuclear weapons. Joining me today to answer these questions as
Professor Charles Moxley of the Forham School of Law. Moxley
(01:32):
is the author of the book Nuclear Weapons, International Law,
Existential Risks of Nuclear War and Deterrence through Legal Lends,
Volumes one to two.
Speaker 2 (02:17):
Charles J.
Speaker 1 (02:18):
Moxley, Junior is an experienced litigator, arbitrator, mediator, and law
professor at Fordham Law. He has spent over thirty five
years as a litigator in large and complex commercial securities,
insurance in other cases throughout the United States, while teaching
arbitration law and practice and international law, as well as
(02:39):
litigation related subjects including evidence, civil procedure, New York practice,
and professional responsibility. He is a prolific analyst on nuclear
weapons law, having taught the subject since the early two thousands.
Moxley has also published numerous law review articles on the
subject of nuclear weapons and international law law, including in
(03:01):
the Fordham International Law Journal. He has also spoken frequently
on the subject at the United Nations, the New York
City Bar Association, and the International Session of the American
Bar Association. Charlie, Welcome to the show.
Speaker 2 (03:16):
Thank you so much, Andrew, I'm delighted to be here.
Speaker 1 (03:19):
As tensions with Russia and China rise, there are concerns
that these tensions would erupt into a nuclear war. What
does the law here in the United States say about
the use of nuclear weapons? Is it a hard and
fast rule, as many assumed, that the US uses nuclear
weapons solely for defensive purposes? Or does the law allow
(03:41):
us to use these weapons for offensive cases?
Speaker 2 (03:48):
This area, Andrew, of the law and is particularly international
law that applies to the use and threat of use
in dugli weapons. This is a huge topic. The type
written manuscript of my book reads sixteen hundred pages, so
it's it's it's hard to summarize it, but there is indeed,
(04:11):
and I think this is a threshold insight for all
of us as we think about it. Uh, there is
a body of law, international law that applies to the
use and the threat of use of nuclear weapons. And
(04:32):
this is not an esoteric point or a controversial point
in any way. It's acknowledged by the United States, by Russia,
by China, by other nuclear weapons countries that there is
this body of law. And so, as you've asked in
our in our preparatory discussions what is this body of law?
(04:57):
And I think people will find it interesting that the
body of law that applies here is the body of
international law, including particularly the law alarm, conflict, and other
areas that applies to conventional weapons general. Right, there are
(05:18):
nuanced areas of international law that relate to nuclear weapons.
But as a broad opening perspective on this discussion, the
international law that applies to the threat and use of
nuclear weapons is the same body of international law that
(05:39):
applies to the use of conventional weapons. And this is
a well formulated body of law. It's set forth in
a number of multinational conventions to which the United States
and other nuclear weapons countries are members, and it's set
forth in so called customary international law, which, for you
(06:04):
and those of your audience who are involved to some
extent in US law and the common law, customary law
is in a sense analogous to common law. It's not
part of a statute or a convention and a multinational
treaty necessarily, but it is a body of law that
(06:24):
is broadly recognized by countries throughout the world, essentially all
the countries of the world broadly speaking. So that's what
customary law is. The area of international law, including conventional
law and customary international law, includes a number of principles, right,
(06:49):
a bunch of rules and principles that are the rules
that apply to the use of nuclear weapons as they
apply in fact to the uth some conventional web.
Speaker 1 (07:02):
If you were to expound on what we consider to
be customary international law, how international is what we assume
to be customary international law. Often time of criticism that
comes from people in the Third world and also the
non Western world is that a lot of things that
are considered to be customary international law are written for
(07:24):
by the winners, that is the West. So could you
expand on this customary international law and how universal it is?
Speaker 2 (07:36):
Yes, I think that's a very good question. The area
or part of the fabric of international customary law that
is relevant to our discussion today about is the use
Is it law for to use nuclear weapons or to
threaten to use them? Is the policy of the terrence
(07:58):
law for or not? There are five or so central
principles and they're broadly recognized. I mean, there was, as
you may recall, I know you're a student of this
area and done a lot of work in it. There
was an advisory case that the General Assembly of the
(08:22):
United Nations took to the International Court of Justice, the
ICJ and the mid nineties, and the ICJ issued a
decision on the topic, and the topic was the lawfulness
of the threatned use of nuclear weapons. And at that
(08:42):
series of hearings around that case, you had countries from
around the world, and you had on the panel of
judges from the ICJ judges from the world's legal systems.
So I think, Andrew, in answer to your question of
how broad this is, I think these principles are broad
(09:06):
and broadly accepted, and I don't think it would be
a fair characterization to say that they are victor's rules
that have been played out following a war. I think
these are or very broadly recognized rules across the world's
(09:29):
legal systems. And I think if you think it makes sense,
I'd be glad to kind of walk us through what
the five or six main principles are here, and then
we could if you think it makes sense, you know,
we could talk about individual ones of them, but I
(09:49):
think it's worth just looking at, you know, what are
the rules. If that makes sense the little.
Speaker 1 (09:56):
Could you walk me through those principles?
Speaker 2 (10:00):
Yes, let me do that, and I really hope this
will be helpful with it being interesting for people. And
at first, let me name that the rule of distinction
or discrimination essentially synonymous terms the rule of proportionality, the
rule of necessity, the law has to reprisal reprisals, and
(10:28):
the rule of precaution. So while one can expand the discussion,
these are, to my study and observation, the primary rules
that most fundamentally apply no matter who you are, whether
(10:48):
you're a lawyer within a nuclear weapons country, in the
law department where you're a military person and responsible for
state's nuclear weapons, or you're in an n g O,
or you're at the UN and the disarm Limit Agency,
wherever you are, and you're look, if you're looking at
(11:11):
the question are nuclear weapons lawful, you're going to have
to look at these rules.
Speaker 1 (11:16):
So would you say they hail from Michael Waltzer's Just
for theory and Thomas aquinas, Are these the roots of
these principles?
Speaker 2 (11:25):
I mean, I think I think it's a good point,
and it's an interesting It would be a quite an
interesting study to take any one of these rules back.
But I take it as a general matter that they
go back and and and indeed, here's a point before
we delve into you know, what they are, what they mean.
(11:46):
I take it to be the case, which sort of
supports your inference that these go back very early in
human intellectual history and theory about law and justice and
right action and so forth. These rules are part of
the New York Enal Code, where I live and where
(12:07):
I'm admitted as a lawyer, but certainly throughout the United States,
I think throughout the world. I mean, I'm obviously, you know,
not an expert on legal systems of of of of
of all other countries of the world. But in my
book I had a group of students working with me
(12:28):
on some of these principles, who went through and found
summaries of some of these principles in the law of
legal systems throughout the world. But these five or so
rules I've talked about are fundamental. I take it they
would go back to Aquinas, and they would go back
to the early intellectual leaders, you know, in the West,
(12:48):
but I would assume in the East and in all
other legal systems, the same kind of rules are there
in the criminal law and to some extent in civil law.
These rules are just plain fundamental rules, and let me
just egglemitt it and walk through them, and then you
(13:11):
can give me your Saint Andrew of you know what
makes sense in terms of whether to follow up on
more detail on them. But the first of them, which
has been called the grandfather of the rule of these rules,
is the rule of distinction or discrimination, and it means
that in war. But you know, the same thing is
(13:34):
true if a police officer under municipal law in the
United States, a person lawfully using force is legally constrained
to use it in a way that you know you're
distinguishing appropriate targets of the use of force. And so
(13:54):
one should not under international law, whether it's a conventional
weapon or a nuclear weapon or a chemical and biological weapon,
although they're in a somewhat different category now because there's
a convention on the latter or two. One needs to
not use a weapon that can't distinguish a military target
from a civilian target, or not use a weapon that
(14:17):
is capable of distinguishing between those kinds of targets, not
to use it in a way where where it's in
a circumstance where it can't distinguish. So in the use
of force, the US, Russia, China, any country that has
these weapons, or has any kind of weapons is subject
(14:38):
to this rule of distinction that you can't it's unlawful
to use weapons that can't distinguish between legitimate and illegitimate,
lawful and unlawful targets. And it's unlawful to use even
otherwise lawful weapons in a way or circumstance where they
can't distinguish. Right, So that's the rule of distinction. Broadly,
(15:04):
there's a rule of proportionality. There's several of them, but
the rule under a law of armed conflict or international
humanitarian law of proportionality is that the effects on the
collateral effects on civilians and protected persons and objects shouldn't
(15:30):
be disproportionate to the military value. Right, you can, you're
going to strike a target. In the reality of war
of armed conflict, it will happen that civilians will be
in the way and you will harm civilians. But the
rural proportion you know, the rule of distinction says you
(15:52):
have to use your weapon in a way to distinguish
the lawful target. The rural proportionality says, well, even though
we know you know, and this stuff is not intended
to be unrealistic. It's supposed to be realistic in difficult circumstances.
Proportionality means that you can't use a weapon who effects
(16:13):
are going to disproportionately affect civilians and other protected persons
and objects. So that rule of proportionality is a serious rule,
and it applies here. The third of the central rules
(16:34):
is the rule of necessity, and it says that while
you can use weapons as necessary and as long as
they comply with distinction and proportionality to advance your interest
in the war or the armed conflict, you can't use
a level of force beyond that which you really need
(16:57):
for the circumstance. Right, If you can achieve your military
objective in a particular instance through a lower level, a
lower decibel level, that's not the right frame, but a
lower level of force, one is supposed to do that
(17:18):
within reason. So that's the rule of necessity. And we
can talk about what these things mean. But that would mean,
for instance, that if one could achieve one's military if
one were a nuclear weapons country. But even the other
rules that would be applicable to the side, if one
(17:39):
could achieve one's military objective through the use of conventional weapons.
One should not use nuclear weapons because obviously they are
at a much higher, you know, level of extent of
force and destructiveness and effects. So that in a broad
sense I'm oversimplifying, is the rule of necessity. And then
(18:03):
the rule of precaution is very broad, and it says that, well,
we have these rules of onmed conflict and states, governments,
the civilian leadership, the military leadership are supposed to comply
with these rules. But obviously the government and military work
(18:26):
through individuals people people like you and me and your audience, right,
And so a government and a military have an obligation
to take reasonable precautions in all aspects of their planning
and implementation of the use of force and planning for it.
(18:50):
It's required to take reasonable precautions to do it in
a way that will comply with international law. So that's precaution.
And then of the main rules, the one other one
that I'll focus now is, as you mentioned earlier, Andrew,
the rule the law as to repriseal and reprisals are
(19:14):
an area of law where if one's adversary is violating
the law, one has kind of a leave to violate
the law oneself. But there are limits on that. It's
supposed to be limited and effect. It's not supposed to
be more than is needed in the occasion. It's not
supposed to be disproportionate to what you're responding to. So sorry,
(19:42):
I've kind of gone on in a long monologue, and
I wanted to have a discussion, But this is a
I think it's a good kind of summary introduction of
points that are not contra versil as to what these
rules are that apply to nuclear weapons, and broadly speaking,
(20:07):
what they mean.
Speaker 1 (20:09):
From my understanding, it would be largely difficult for strategic
nuclear weapons of the sort we saw being deployed in
Hershem and Nagasaki to fall under illegal use if we
have these principles. But what about tactical nuclear weapons? How
would you categorize that? Do you think there's a possibility
we could use tactical nuclear weapons would low yield in
(20:31):
a way that adheres to these principles.
Speaker 2 (20:35):
Yes, you've put your finger andrew on a central point, right,
you're saying, Okay, you're sort of anticipating the point I
was leading towards that. Certainly, as to higher yield nuclear weapons,
(20:56):
as you say, it's hard to imagine how they can
comply with these rules that I have described of distinction, proportionality,
and the necessity recaution, lawful reprisal. Because their effects are
so great they can't distinguish. They're not controllable, so you
(21:20):
can't know if you're thinking about if you're if you
or either the lawyer advising the military, or the president
or the civilian leadership, and you know it would it
be lawful to use these weapons, since the lawfulness turns
on the effects of the use, and since these weapons
are so uncontrollable that we can't know the effects, your
(21:42):
point is I think absolutely correct that it's it's essentially
not possible. Although I have to say, I mean, we
could talk about this. There are people who disagree with this. Now,
people disagree with the conclusion that it's unlawful. It's just
plain clearly I would say, essentially per se unlawful to
(22:07):
use high yield nuclear weapons. So we can come back
to that. I mean, I mean, that's an important area,
and it is an area where the proponents and the
critics of nuclear weapons as an instrument of national defense
and warfare disagree, right, But your point about low yield
is one that has to be addressed. First the comment
(22:31):
the term low yield is not defined definitively by anybody,
and actually the yields of the weapons that were used
on Hiroshima and Nagasaki in the range of fifteen to
(22:51):
twenty you'll see different kiloton estimates or numbers as to
the level those would be regarded by some as low
yield now or certainly relatively low yield, because, as you know,
the chiloton age, the extent of the destructiveness of a
(23:13):
nuclear weapon is measured by its kilotonage, the thousands of tons,
and the typical nuclear weapons that we have in our arsenal,
although we have dial a yield weapons that have a
range of yields, but the typical yield is in the hundreds,
three hundred and fifty four hundred kilotons. There are megaton
(23:37):
nuclear weapons which are of even huger destructiveness, although the
United States at this point doesn't, as I understand it,
maintain any nuclear weapons in the megaton range. But going
back to your point, Andrew, what about low yield? What
(23:58):
about you know, one kiloton, two, kiloton, three or even
sub kiloton, right, I mean, there are tactical nuclear weapons,
which means in a sense low yield, although there are
different definitions, but in a sense low yield that are
(24:19):
even below a kiloton, and so there's different levels of
answer to that. Firstly, the factual inference that's behind your point,
which is a good one, is there a distinction here
is a correct factual inference that if you compare the
(24:41):
effects of any one tactical nuclear weapon, which is for instance,
the concern we've had that Russia that you know, putin
might use them in Ukraine this evening, right. I mean,
it's not as if this isn't part of the news
cycle now. It is the fact that these low illo
(25:01):
nuclear weapons, you know, are lower eel and their spread
of effect is much less. And so you know, it's
interesting if one goes back to that case that I
refer to, that the advisory opinion. It was brought by
the General Assembly of the UN to the International Court
(25:23):
of Justice the ICJ at the mid nineteen nineties, the
defense by the United States of the lawfulness of nuclear weapons,
because the US was a nuclear weapons country, with the
UK and France and Russia and China and other nuclear
weapons countries defending the lawfulness of their plans, their policies
of deterrence. The defense the US used that I cover
(25:46):
this in my book at some length because it's an
important point. The defense was that, oh, here, you know,
the critics are exaggerating the effect of the use of
these weapons because we have low yield weapons that we
can deliver with precision to a target and they'll have
(26:07):
limited killer tonnage, they won't spread that much radiation, and
they're not going to cause a lot of these effects
of nuclear weapons that are potentially existential, right, I mean,
a broad scale war between the US and Russia. There
was that there were authoritative estimates that were made. There
(26:28):
was a big study that came out in August of
twenty twenty two that you could find that you your
readers can find on the internet where very qualified scientists
from around the world spent an extensive amount of time
and they modeled the effects of a nuclear war between
the US and Russia. And what did they find. They
(26:50):
found that the number of deaths from such a war
get this, five billion people. I mean that's most that's
most of the population of the world, so it's huge.
So on your point, well, what about these tactical weapons,
you know, these low yield Yes, they're lower yield. Yes,
(27:12):
they're less destructive. Yes they're not going to destroy the
world or be existential you know, anyone strike. But here
is the fallacy, Andrew. To my thinking, here's the fallacy.
And this is why when I received your invitation, and
(27:35):
knowing your podcast and that your audience is young folks
in large measure like yourself, in graduate school and in
internships and with an interest in these areas, it's why
I was so pleased you'll be able to have this
discussion with you. Here's the fallacy, here's the fact's see,
(28:02):
you know, and and frankly, this isn't me talking just
from a personal perspective. I mean, I have several chapters
in my book which just came out in the last month,
on this, and you and your audience can research its
independently if you like. There is a huge body of
(28:22):
literature out there that the use of low yield nuclear
weapons between nuclear powers has a high likelihood of escalation.
So that's the point I think, Andrew, when people who
are defending the potential use of nuclear weapons by saying, oh,
(28:46):
it'll be low level, the risk is the escalation thing.
And you know, it's not as if this exists in
a vacuum because under deterrence theory, we in the US,
our military and civilian leadership in this area have spent
ever since the Cold War extraordinary efforts and initiative and
(29:12):
time and expense trying to anticipate what the other side
would do, you know, and how you work the terrence.
And there's a high level of awareness that the risk
of the escalation of going up the escalation ladder is
high because each side would want to show resolve, and
(29:33):
so maybe they'd go up a little bit. You know,
one side would use a kiloton and one of them
and the other side might use two one kiloton bombs
or maybe they but then the first guy would say, well,
the second guy's doing this and will go up, and yes,
if we could keep it, if they could keep it
to you know, low yield, it would be horrible. I
(29:59):
mean if a low YEO nuclear weapons hit a major
city in the world, I mean it would it would
destroy it could it could destroy that city at huge,
huge numbers of people. Right, But the the risk to
human life and humanity, the existential risk, is that there
(30:21):
is this high likelihood of escalation, right, I mean, I
mean that's the that's the reality. I think I've got
to stop and you know, see what you know, if
you have a have a direction you'd you'd like to
see is going. But I think that's reality.
Speaker 1 (30:34):
Before we go to the general principles about deterrence when
justifying the nuclear bombings Energyma Nagasaki. I don't know if
it's a legal argument, but one point that proponents of
the bombing often bring up is that if we never
dropped the nuclear bombs on Hiroshima and Nagasaki, more American
troops would have died. Therefore, because we have stopped more
(30:56):
American troops from dying, and presumably more Japanese millions from
dying in a land invasion of Japan, it was justified
for the United States to use nuclear weapons this line
of reasoning, and I'm not referring to the specific line
of reasoning and the specific case which is Hersheim and Nagasaki,
But is there any provision in UST law and international
(31:17):
law that addresses this possibility whereby if there's a large
amount of risk to one's own troops, then the use
of nuclear weapons has justified. I just want to hear
your thoughts and insights on that matter.
Speaker 2 (31:30):
I mean I think you raise a good question. Isn't
the case isn't it the case that the doesn't day
rategic reality? It's totally different from what existed in nineteen
(31:52):
forty five at the end of the Second World War.
It's just totally different. The US was the only country
that had these weapons. You didn't have that risk of escalation.
I was just talking about. You had a level of
risk that while arrens and I think the people who
(32:13):
made the decision to use it knew that it was
going to be a stupendous you know, a bomb in
each case with stupendous effects, It wasn't what we face now, right.
So I understand your question, and I've looked at your podcasts.
I see you have many, you have numerous podcasts on
(32:35):
interesting subjects across the area of foreign affairs, right, And
so it's so interesting and this is an interesting area, right,
I mean, does the terrens protect our country or if
we were in Russia or China were to protect our
country from the perspective of those countries, you know, And
(32:57):
in a sense, I think this is the greatest threat
and in a way that if you ask me, you know,
what is a message that I would like to get through.
Haven't spent so many years writing this book. It is
that we need, and really for you younger generation, right,
(33:18):
because of the generation I grew up during the Cold War,
where we had an awareness when I was in school,
when I was in college, I mean, we had an
awareness of the risk to use in nuclear weapons. But
other than yourself and people like you who are graduate
students or interns or working in the field, or in
(33:40):
the Congress or in the government somewheres, the level of
concern about these areas. So my perception is not that great.
It has receded from our consciousness because we've bought into
the idea that, well, deterrence is a policy and it's
(34:00):
a nice thing and it saves us from a lot
of risk and a lot of death because we threaten,
you know, adversaries that don't do anything that is inimicable
to you know that injures our interests or will come
back with a huge, extremely destructive response. And so it
(34:22):
sounds like a good bargain, right, But what's that term
that we all learned when we were in college about
Faustian bargains? You know, it's it's an unfortunate it's a
failure of imagination to buy that rationale, because deterrence is
not a theory, it is a readiness. It is an
(34:45):
acquisition of billions of dollars. I mean, I have the
numbers up here on my screen somewhere is from the
book of you know, over a ten year period, which
we're in maybe the third year of now at the
estimate from the Congressional Budget Office, with something like seven
one hundred and eighty billion dollars for nuclear weapons. You know,
it's a huge amount of money. It's a huge expenditure
(35:07):
of human personnel and training, you know, to be ready
to use these weapons. And the answer to your question
of you know, saving time and saving life by using
these weapons, we have a lot of our weapons on
high alert levels, right, and the Russians have it as well. Ironically,
(35:28):
by the way, China doesn't. China has what I would say,
or has had for years predominantly what I would call
a much more enlightened policy where they sell And this
is something you know that you and your you know,
and people a younger generation might want to think about,
(35:49):
right because you all are going to have influence. You
have influence now with the government and with the legislature
and with the people in the in the agencies. You
know what China does is they separate out the nuclear
warhead from the delivery vehicle, and they don't have things
on the high alert levels. But as long as you
(36:09):
have this high alert level, Andrew, I don't think your premise,
you know that you were asking me about from the
first the Second World War perspective. You know, I don't
think that's how it works today, that well, we're going
to save people's lives or anybody by using these weapons.
I mean, we're going to risk getting much more horrible repercussions.
(36:31):
But let me mention one of the Let me mention
one thing, Andrew. That for you and for your your generation, right,
many of you, as I you know from talking with
you earlier, many of you all are in graduate school
or in law school, and you're interested in international affairs,
(36:53):
international law, international relations. And I've talked as you said
if Ford in law school for years. Students and professors
alike are looking for areas to write in where you
can make a difference, where you can have an actual impact.
(37:15):
It's not just some theoretical thing that's another article and
nobody will ever read or care about it. There are
in this area that I've written about in my book.
It's an area that frankly is not It hasn't gotten
much attention in the literature. Right. If you google nuclear weapons,
(37:39):
you'll get untold you know, probably millions of hits, right,
but if you hit the legal piece, you're not going
to find much. You may find me in there a
couple hundred times, and some of the people I work with,
But I mean, there's just a handful of this. It
hasn't gotten the attention it deserves. And for your generation,
(38:02):
I believe there is an extraordinary opportunity to write stuff
and develop the law. I did with a number of others,
I organized a conference at the end of twenty twenty
three on this field of nuclear weapons and international law,
and the proceedings of it were published by the Georgetown
(38:24):
Journal of International Law at the Law School, and you
all can find it if you google it. They did
a special edition they came out about two months ago,
which was the proceedings of the conference, and as part
of that or I could send it to you if
you wanted to share it with your readers. I prepared
a list of issues that I prepared for the faculty
(38:47):
of the conference, and then we talked about them in
the conference. And my kind of invitation to you and
your colleagues and to the younger generation, take this list
and take it to the next level, you know, figure
out your analysis of the answer to these questions, which
(39:11):
are questions that have not been much addressed in my
book that just came out. I mean, any number of
these issues that I address. I hate to say it.
I mean I was just one of the first people
to address them. And I'm not saying, you know, somebody
else will judge whether I did it well or not well, right,
I mean, not for me. But the issues, unquestionably are
(39:34):
very central issues. And I think it's you know, what's
that expression. You know, there are a lot of very
juicy issues to be looked at in ir in IL
around nuclear weapons threaten use.
Speaker 1 (39:51):
If you were to suggest some policy recommendations and maybe
point out to any loopholes that exist or any issues
that exist some current laws about nuclear weapons for the
future generations to fix. What areas would you highlight as
the main areas that need new laws, new policies, new
legislation or loophole fixing measures to be implemented.
Speaker 2 (40:14):
In Yeah, I mean I think in a way, the
main area that I need to work on with people
I know, and you and your generation needs to work
on is the policy of deterrence, because the US and
Russia are making, in my judgment, a significant failure of
(40:40):
strategic thinking by having these weapons on a high alert level,
with very short time for decision making, and with obvious
technological issues as to potential human and equipment failure, particularly
as AI inevitably kicks in. So we've created a sit
situation that is very risky and we should step back
(41:04):
from it, not you know. While one can say, and
you were talking about somistic thinking and just war, yes
we should think for reasons of justice and human potential
to do the right thing. But I'll take the discussion
to the next level. We should think because of human survival.
(41:27):
Whether we're a patriot in one country or another or
however you know, we think about these things. It is
unquestionable that there is a huge risk the human life
and survival because of the high alert level and the
(41:47):
thousands of these weapons we have ready to go, and
the potential for events lurching out of control, which is
you know, historically you were talking about World War one,
and we were talking earlier about World War one and
World War two. It's a risk, so I hope this
(42:08):
comment is helpful, Andrew. Andrew, my answer to your question
is that my suggestion would be to focus on the
risk of our current policies and on, if not doing
the right thing, at a minimum, surviving, which I think
gives us a basis to communicate with people in other countries,
even countries adversary with us now, because you know, unlike terrorists,
(42:33):
who it's impossible to one would think to deter a
terrorist because the terrorists may want to die right and
want to be a martyr. But government leaders, country, country leaders,
I mean, you could add your rational leaders and that's
a risk at times, right, but countries want to survive.
So my rawdest you know, I guess suggestion an answer
(42:57):
to your question of what is the main thing I'd
suggest is work on awareness of understanding how out of
reasonable proportion we've let the risks become and start communicating
with people from other cultures and countries to work on
(43:18):
survival tactics to just lessen the risks. And I know
you're a big you know you're studying ir and and
I'm sure you've had any number of courses, very interesting ones.
I can imagine it's gw you know, on what is
(43:39):
one's theory of international relations? Right? And one theory, of
course is hegemonated. We want to be stronger than our adversary.
But a theory that I think the US and the
Soviet Union had reached by the end of the Cold
War was a sense that the strategic milieu that made
(44:07):
sense was one of mutual security. That my country is
safe if my adversary feels that they're safe and don't
feel a need or you know, the high alert levels
and the quick reactions, and if we're able to communicate.
So I think mutual security. I don't know if that's
(44:30):
what you're hearing in graduate school now. I'd be interested
in that, Andrew, But I think we need to get
back to that, and it's not where we are. I
don't believe.
Speaker 3 (44:39):
What would you.
Speaker 1 (44:40):
Say has been a cause of failure in the current
non proliferation regime? Is it the fact that the non
proliferation regime we have a question, did not account for
in multi foiler world where countries that are not the
Soviet Union or Russia and the United States or China
have slowly begun to obtain new clear weapons. Or is
(45:01):
there something that we have done wrong in coming up
with the global non proliferation regime that it has led
to countries like Iran and North Korea despite best efforts
from Washington and other countries to stop them obtaining nuclear weapons.
Speaker 2 (45:21):
Again, we could have a couple of books on this right,
a propieted that's a good point. I think that was
starting with Russia. Obviously people disagree on this right, but
after the fall of the Soviet Union, we added choice
(45:42):
and there were even discussions then should we bring Russia
into NATA? You know, but the nature of the relationship
was an open question. But the approach that we took
in the US, and you know, it's a big historical debate.
Was this a huge mistake? But we moved NATO more
(46:03):
and more to the east and closer and closer to Russia. Now,
would we have the current aggressiveness of Russia if we
hadn't done that, would have would it have happened any
would Russia because of a sense of you know, a
Russia file thing, have have wanted to regain the Soviet
Union and the empire. I mean, that's a debatable question, right,
(46:28):
and and I'm not the expert on that, but I mean,
I know that's an issue. But uh, to my judgment,
we made a mistake in pushing ever closer to Russia's
borders and making it harder because we had an arms
control regime obviously throughout the Cold War, and then at
(46:51):
the end of the Cold War we made great progress.
We took the weapons down. We did it under Republican
and democratic administrations. We took the weapons down and we
made a lot of progress for a while. But then
in recent years arms control has been dead and it's
going to be hard to negotiate anything with Russia, I think,
(47:12):
although I wouldn't give up and say it's impossible until
the Ukraine situation has resolved and hopefully in a way
that doesn't know exacerbate, but in the fullness of time,
there will be opportunity for arms control again, you know,
And that's what we had doing the Cold War. What
(47:34):
I advocate for, you know, on a multilateral basis. I'm
not talking unilaterally, but working out of this sense of
survival towards extensive arms control and ultimately abolition, on the
sense that we the weapons are too risky, they too
much take war beyond just a battle between two countries
(47:59):
to threat the whole world. Really, so the objective should
be abolition very hard, and I don't want to be
unrealistic here, But to answer your question, I think the
failure has been that things got out of control. Now,
what happened with Iran? I mean I don't know. I mean,
we went into Iraq and we with hindsight, I mean,
(48:21):
that was a that was a horrendous blunder, and the
George W. Bush administration did not have the basis for
it that we were told and everybody and most of
the Senate believed, you know, in the leadership, including the
top leadership on both sides of the aisle, believe we had.
You know, So if you're a nuclear weapons country, it's
(48:46):
not irrational to believe, well, or if you're if you're
a country thinking of getting nuclear weapons, it's not irrational
to think, well, I'll be safer if I have them.
You know, it's it's asymmetrical power. So I think that's
the problem. And the answer to it is, you know,
(49:06):
it's complex, and it's a whole discussion, but it's something
we all need to be working on and your generation.
You know, I don't know if you can count on
you know, my generation, your parents generation, resolve in it.
I think you all have to figure out, you know,
and be working on the answers and be ready for
answers yourselves.
Speaker 1 (49:27):
Ladies and gentlemen, you just listened to Charles Moxley, author
of the book Nuclear Weapons and International Law, Existential Risks
of Nuclear War Into Turns through Legal Lens, Volumes one
to two. Charles Moxley, thank you for your time.
Speaker 2 (49:43):
Thank you so by dandre I really appreciate the opportunity
to talk with you, and you and you're following on
your podcasts wonderful Good.
Speaker 3 (49:50):
Strategic Wisdom with Andrew Jose is an initiative of Andrew
Jose Media. The views expressed by guests on this show
do not necessarily represent the official positions and opinions of
Andrew Jose, Andrew Jose Media, and Strategic Wisdom. Thank you
for listening to Strategic Wisdom. Be sure to follow and
(50:11):
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Speaker 1 (50:29):
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For more details, visit Strategicwisdom dot substack dot com sh
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