In a recent interview, Charles Moxley, Adjunct Professor at Fordham Law School, discussed his new book “Nuclear Weapons and International Law: Existential Risks of Nuclear War and Deterrence through a Legal Lens.” This work tackles the critical issue of nuclear weapons from a unique legal perspective, offering insights that challenge conventional thinking on nuclear deterrence. In this interview, JURIST’s Managing Editor for Long Form Content, James Joseph, explores Moxley’s research and its implications in the current geopolitical climate.

JURIST: Let’s start by discussing the legal framework you’ve laid out in your book. You mentioned taking the United States’ own articulation of the applicable laws of armed conflict as your starting point. Can you explain the rationale behind that approach?

Moxley: I think it’s important to start from this point because the US is a key player on the global stage, both in terms of its military power and its influence on the development of international law. If I can demonstrate that even the US’s own articulation of the applicable legal principles renders the use of nuclear weapons unlawful, then that carries significant weight. It’s not just my own interpretation, but an analysis based on the US government’s own statements of the law.

A a litigator by background, I wanted to ensure that my statement of the law could not be easily challenged or dismissed. By grounding my analysis in the US government’s own definitions and pronouncements on the laws of war, I’m able to build a foundation that is difficult for critics to refute. In the first few chapters of the book, I carefully review the US military’s manuals and the arguments made by the US and its allies before the International Court of Justice in the advisory case on the legality of nuclear weapons. This allows me to establish the legal framework as the US itself has framed it, before then applying that framework to the facts surrounding nuclear weapons.

JURIST: That’s a fascinating approach. And in a pplying that US-defined law to the realities of nuclear weapons, you’ve reached the conclusion that their use would be unlawful in virtually any circumstance. Can you walk me through that analysis?

Moxley: Absolutely. The key lies in the US’s own acknowledgment that the principles of distinction, proportionality, necessity, and precaution must be upheld in the use of any weapon. When you look at the uncontrollable, indiscriminate, and catastrophic effects of nuclear weapons – the blast, radiation, fallout, electromagnetic pulses, and potential for nuclear winter – it becomes clear that they cannot comply with these fundamental tenets of the law of armed conflict as defined by the US itself.

The US and its allies have tried to argue that the use of “tactical” or “low-yield” nuclear weapons could be lawful, but I find that position to be deeply flawed. Even if a single weapon could theoretically be used in a discriminate manner, the reality is that nuclear deterrence relies on the threat of using the full arsenal, including high-yield weapons. And as long as those weapons exist, their uncontrollable effects mean that their use would be unlawful.

JURIST: That’s a powerful and compelling argument. You also delve into the risks posed by current nuclear policies, such as high alert levels and launch-on-warning protocols. How imminent do you believe the threat of nuclear war to be in the current geopolitical climate.

Moxley: I’m deeply concerned about the level of risk we face. The vulnerability of nuclear assets, coupled with the extremely short decision-making timelines for leaders, creates a highly unstable and dangerous situation. While the overall number of deployed weapons has decreased since the Cold War, the increased accuracy and technological advancements have not necessarily reduced the overall risk.

In fact, I would argue that the current multipolar world order, with tensions between the US, Russia, China, and other nuclear-armed states, may actually heighten the risk of miscalculation or unintended escalation. The policies of high alert levels and “launch on warning” further exacerbate.

JURIST: Can you expand on your approach of taking the US’s own articulation of the law as the starting point?

Moxley: Yes, that was a deliberate choice on my part. I wanted to ensure that my statement of the law could not be easily challenged or dismissed. By taking the US’s own definitions and statements on the law of armed conflict, I’m able to build my analysis on a solid foundation that the US government itself has established.

I believe there is a tremendous opportunity for law students and young legal scholars to make meaningful contributions in this field. The development of autonomous weapons systems, the potential for accidental or unauthorized use, and the broader principles of international law that may apply beyond the US’s own articulations are all areas ripe for deeper exploration and analysis. I would be honored to engage with any students who are interested in pursuing research or writing in this critical domain.

JURIST: Thank you, Professor Moxley. I appreciate your willingness to share your expertise and insights, and I look forward to further discussing these issues and potentially collaborating with you and your students in the future.

Moxley: The pleasure is mine, James. I’m grateful for your interest and engagement on these vital matters. Please don’t hesitate to reach out if you or any of your colleagues would like to continue this conversation or explore potential research opportunities.

JURIST: And what is the US’s stated position on the legality of nuclear weapons under international law?

Moxley: Well, that’s a critical part of the analysis in my book. The US has actually acknowledged that certain core principles of the laws of armed conflict must guide the use of any weapon, including nuclear weapons.

Specifically, the US has recognized that the principles of distinction, proportionality, necessity, and precaution are all applicable. These principles require that the use of a weapon must be able to distinguish between military and civilian targets, the expected harm to civilians and civilian objects must not be disproportionate to the military advantage gained, the use of force must be necessary and not exceed what is required, and precautions must be taken to minimize civilian harm.

So, in my book, I take these US-defined legal standards and I apply them rigorously to the realities of nuclear weapons. And what I find is that the uncontrollable, indiscriminate, and catastrophic effects of these weapons make it impossible for their use to comply with these fundamental principles of the law of armed conflict.

At the end of the day, the threat of using the full nuclear arsenal, including high-yield weapons, is central to nuclear deterrence. And as long as those weapons exist, their uncontrollable effects mean that the entire enterprise is unlawful under the US’s own articulation of the applicable laws.

JURIST: So in essence, you’re holding the US government accountable to the legal standards it has itself defined and acknowledged as applicable to the use of any weapon, including nuclear weapons.

Moxley: Precisely. I’m not just presenting my own interpretation of the law. I’m taking the US’s own statements and applying them rigorously to the realities of these weapons of mass destruction. And the conclusion is inescapable – the use of nuclear weapons, in virtually any circumstance, is unlawful under the principles that the US government has itself recognized as governing the laws of armed conflict.

JURIST: And you cite some historical examples to illustrate the fragility of nuclear deterrence. Can you share those with us?

Moxley: Yes, I reference a particularly sobering admission from a former US Defense Secretary that I think really underscores the precarious nature of the nuclear deterrence system.

Specifically, I cite the words of former Defense Secretary Robert McNamara, who acknowledged that the world was “lucky” to have avoided nuclear catastrophe during the Cold War. As McNamara put it, we were just fortunate that we didn’t experience a nuclear exchange despite the constant threat.

This quote is so powerful because it comes from a senior government official who was intimately involved in shaping nuclear policy. McNamara’s candid acknowledgment that we’ve essentially been relying on luck to avoid the unthinkable is a stark reminder of how fragile the nuclear deterrence system really is.

As I discuss in the book, the vulnerability of nuclear assets, combined with the extremely short decision-making timelines for leaders, creates a highly unstable and dangerous situation. The current multipolar world order, with rising tensions between nuclear-armed states, only heightens the risk of miscalculation or unintended escalation.

So McNamara’s words serve as a crucial historical example that challenges the notion of nuclear deterrence as a reliable or stable policy. It underscores the urgent need to rethink our approach to these weapons of mass destruction, rather than continuing to rely on the hope that we’ll somehow avoid catastrophe through sheer luck.