An interview by Jonathan Granoff of Charles J. Moxley, Jr. on his upcoming book “Nuclear Weapons and International Law: Existential Risks of Nuclear War and Deterrence through a Legal Lens.”
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Professor’s Moxley book provides a comprehensive analysis of international law concerning the use of nuclear weapons, based on existing international law, established facts as to nuclear weapons and their effects, and nuclear weapons policies and plans of the United States. Moxley argues that law can be a positive force in society’s addressing existential risks posed by nuclear weapons and the policy of nuclear deterrence. See https://nuclearweaponslaw.com/.
Charles Moxley teaches nuclear weapons law at Fordham Law School and has written and spoken about international law restraints on the threat and use of nuclear weapons for over twenty years. Former chair of the New York State Bar Association’s Dispute Resolution Section and current co-chair of ComFed’s Committee on Arbitration and Alternate Dispute Resolution, Moxley is the principal in MoxleyADR LLC.
Jonathan Granoff, President, Global Security Institute, is Senior Adviser to the American Bar Association (ABA) Committee on National Security of the International Law Section. He serves as the Senior Advisor and Representative to the United Nations of the Permanent Secretariat of the World Summits of Nobel Peace Laureates.
Charles Moxley and Jonathan Granoff are co-authors, with John Burroughs, of the Fordham Journal of International Law article, Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty.
This program is a continuation of a series of webinars on international law requirements concerning the threat and use of nuclear weapons organized by Moxley, Granoff, and Burroughs, with others. The most recent such event, the November 8, 2023 conference, Nuclear Weapons and International Law: The Renewed Imperative in Light of the Ukraine War, was co-sponsored by the ABA’s International Section and by the U.S. Air Force Academy, Law, Technology and Warfare Research Cell, and other institutions.
For a video of that conference and related materials, see https://nysba.org/events/nuclear-weapons-and-international-law-the-renewed-imperative-in-light-of-the-russian-invasion-of-ukraine/ . The proceedings of the conference will be published by the Georgetown Journal of International Law in a Special Edition to be issued later this month.
An earlier conference in this series, Nuclear Weapons and International Law in the Contemporary Era, was conducted on November 12, 2020. The proceedings of this conference were published in a Special Edition by the Fordham International Law Journal and are available at: https://www.fordhamilj.org/volume-45-special-issue. For a video of the conference and related materials, see https://nysba.org/events/nuclear-weapons-and-international-law-2020-webinar/
As well as Jonathan Granoff, John Burroughs, and Charles Moxley, speakers at these conferences included present and former officials of the U.S. government and military, who have or have had significant responsibility for U.S. policy and plans concerning nuclear weapons, and leading international figures. Speakers for the November 2023 included:
- Jeffrey Biller, Deputy Director, Law, Technology and Warfare Research Cell, United States Air Force Academy
- David S. Jonas, Partner, Fluet; Former Nuclear Nonproliferation Planner, Joint Chiefs of Staff; LtCol, USMC (Ret.); Adjunct Professor at Georgetown and George Washington Law Schools
- Major Kenneth Daniel Jones, Judge Advocate, Office of the Judge Advocate General, U.S. Army
- David Koplow, Professor, Georgetown University Law Center; Former Special Counsel for Arms Control to the General Counsel of the U.S. Department of Defense
- Colonel Theodore T. Richard, United States Air Force Judge Advocate, Staff Judge Advocate at Space Operations CommandShane Smith, Director, Institute for National Security Studies and Associate Professor, Dept. of Political Science, United States Air Force Academy
Speakers at the 2020 conference included:
- Jerry Brown, Former Governor, State of California; Executive Chairman, Bulletin of the Atomic Scientists, and Jonathan Granoff
- Gloria C. Duffy, President and CEO, The Commonwealth Club of California; former Deputy Assistant Secretary of Defense
- Dr. Christopher Ashley Ford, U.S. Ambassador, Assistant Secretary for International Security and Nonproliferation, U.S. Department of State
- Thomas Graham, Jr., Former Special Representative for Arms Control, Nonproliferation and Disarmament; Former General Counsel, Arms Control and Disarmament Agency
- David A. Koplow, Professor, Georgetown University Law Center; Former Special Counsel for Arms Control to the General Counsel of the U.S. Department of Defense
- Hans M. Kristensen, Director, Nuclear Information Project, Federation of American Scientists
- Izumi Nakamitsu, UN Under-Secretary-General and High Representative for Disarmament Affairs (Keynote address)
- Scott Sagan, Caroline S.G. Munro Professor of Political Science, Stanford University, and Senior Fellow, Freeman Spogli Institute for International Studies
ABA President Mary Smith opened the November 8, 2023 conference, emphasizing the longstanding and strong commitment of the ABA to the rule of law as concerns the use of force, including the use of nuclear weapons. Then ABA President Patricia Lee Refo introduced the November 2020 conference, similarly emphasizing the ABA’s strong commitment to the rule of law concerns the use of force, including nuclear weapons.
Professor Moxley’s book comprehensively builds on and explores in great depth issues developed in these recent conferences co-sponsored by the ABA. Issues that Jonathan Granoff will cover with Professor Moxley at the April 17, 2024 webinar include:
Controllability
- Under Law Of Armed Conflict (LOAC), is it lawful under the requirements of distinction, proportionality, and necessity for a state to use weapons, including nuclear weapons, whose effects cannot be controlled?
- Are such potential nuclear weapons effects as radioactive fallout, nuclear winter, and Electromagnetic Pulse (EMP) controllable?
Scope of Relevant Effects
- In applying the LOAC requirements of distinction, proportionality, and necessity to potential uses of nuclear weapons, must all foreseeable effects of such uses, including radioactive fallout, nuclear winter, and EMPs be considered in assessing the lawfulness of such potential uses?
Prerequisites for Legal Opinion of Lawfulness
- The U.S. has processes in place for its lawyers to advise on the lawfulness of military operations, including potential nuclear weapons uses, under consideration. What is necessary, as a matter of law, for such lawyers to conclude and advise that a particular nuclear weapons use would be lawful? Woold it be sufficient for the legal advisors to conclude in good faith that they are unaware of any basis to conclude that such a use would be unlawful? Or must the legal advisors be able to form a good faith basis to believe that the effects of the strike would comply with LOAC, including the requirements of distinction, proportionality, and necessity? If the potential effects of a nuclear weapons strike under consideration are unknown or unquantifiable, may the legal advisors advise that the strike would be lawful? May the military lawfully use nuclear weapons in circumstances where the foreseeable likely effects of the uses are essentially unknown and even unknowable?
Proportionality
- Is the requirement of proportionality, as applied to potential weapons uses, including potential nuclear weapons uses, solely a matter of balancing the concrete and direct value of the military target and the potential collateral effects on civilians and other protected persons and objects––or are there objective limits on the extent of collateral effects, and, if so, what are they?
Necessity
- Under the LOAC requirement of necessity, would it be lawful for the United States or other nuclear weapons state to use nuclear weapons in circumstances where conventional weapons could do the job?
Risk Analysis
- In applying risk analysis to the application of the LOAC requirements of distinction, proportionality, and necessity to potential nuclear weapons uses, what, if any, weight, should be ascribed to identifiable foreseeable non-speculative risks, including low probability risks, of unlawful effects, including risks of tens or hundreds of millions and even billions of civilian deaths and the substantial destruction of human life and civilization? What, if any, objective limits are there, as a matter of law, as to the extent of risks a state may impose on non-combatants, including civilians and neutrals?
Nuclear Deterrence/Threat Law
- Does the policy of nuclear deterrence constitute a threat to use nuclear weapons?
- Under LOAC, is it lawful for a state to threaten to use a weapon that it would be unlawful to use?
Nuclear Counter-Strike and Escalation
- In the context of a state that conducts a nuclear weapons strike against a target state, what, if any, legal responsibility does the attacking state have for identifiable foreseeable non-speculative nuclear counterstrikes and escalation by the target state?
More on Professor Moxley here.
