BY: KELLY MCGRATH
“Mutually Assured Destruction,” the guiding principle that many people suppose has kept the world free from nuclear war for the past 80 years, was challenged by Charles J. Moxley, Jr., author, arbitrator, and mediator, in a book talk he gave at Cardozo Law Institute on September 16.
Moxley claims that this long-held theory of nuclear deterrence is antiquated and not equipped to deal with modern day threats, arguing there is an urgent need to develop laws that address directly the legality and usage of nuclear weapons.
Moxley discussed his new book, “Nuclear Weapons and International Law: Existential Risks of Nuclear War and Deterrence Through A Legal Lens” at a free lecture at the law institute, moderated by Brett Jones, a Cardozo Fellow and instructor in the Human Rights and Atrocity Prevention (HRAP) Clinic.
Moxley’s work analyzes the United States’s own articulated legal principles in regards to the use of nuclear weapons, and whether the use of such weapons can be justified even under its own vague legal framework. He claims that the use of these weapons cannot be justified legally and that neither we, nor our key nuclear adversaries adhere to already existing policies. He emphasized that a concrete legal language must be created to address nuclear weapons directly in order to lower the risk of nuclear conflict in our lifetime.
Five specific 2024 nuclear threats, including the Russian war in Ukraine, the rapid expansion and diversification of China’s nuclear arsenal, opportunistic aggression from North Korea, the United State’s extended commitment to its allies and policy of deterrence, and the rapid modernization of the United States nuclear defense program were identified by the Center for Strategic and International Studies, a bipartisan non-profit research organization which focuses on identifying and addressing the greatest threats the world faces today.
Uncomfortable questions arise as tension mounts between the United States and its opposing world powers. Should we be asking ourselves: Will we see nuclear conflict in our lifetime, what does that look like, and what can be materially done to prevent it?
“I think for many of us that idea is scary, right?” Jones, the moderator said, “and for many people that fear sometimes prevents us from doing.”
Moxley said that the long-held traditional strategy of Mutually Assured Destruction as a form of deterrence is not enough to prevent nuclear fallout anymore, citing that the development of more accurate, lower-yield, nuclear weapons undermines the theory of Mutually Assured Destruction, and that there is an increasing need for a stronger legal language that addresses the modern day threats.
For years the international community has relied on the principle of Mutually Assured Destruction to keep us safe from nuclear conflict. This is the idea that if one world power were to launch a nuclear weapon at another, the counter-attack would be carried out with such intensity that both acting states would be completely destroyed, therefore neither state would launch a nuclear attack to begin with.
“I’m one of the only people talking about this,” Moxley said. He claimed that people, including world leaders, are in a “psychological state of denial,” about the reality of the threat of nuclear conflict.
In 2024 the International Criminal Court, or ICJ, ruled unanimously that, “There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons,” while simultaneously ruling that, “there is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such.”
This legal gray area and apparent gap in international law Moxley suggested, opens the entire world up to a higher risk of nuclear conflict. In an interview with the Brooklyn News Service, Moxley said that he is “concerned” about the potential of some kind of nuclear conflict and that many people “have shut their eyes” to the issue itself. He believes it is by luck only that we have been spared from all-out nuclear war. What Moxley hopes to accomplish with his book is to put the wheels in motion to reassess the current laws and policy or lack thereof surrounding nuclear weapons and the legality of their usage.
Moxley pointed out that there is not even a set definition for a low yield nuclear weapon, and that by the United States standards, a low yield nuclear weapon may be anywhere from five to thirty kilotons. As a frame of reference, the two bombs dropped on Hiroshima and Nagasaki were 15, and 21 kilotons respectively.
Even a highly accurate low yield nuclear missile launched at a submarine in an extremely isolated area of the ocean, while meeting the vague criteria and policy for a legal use of nuclear weapons, as defined by the U.S Manual of War, would cause catastrophic damage to the ocean’s ecosystem via radiation and further emphasizes the urgent need for a reassessment of the current policy.
A simulation conducted by Princeton found that the launch of one low yield nuclear weapon in a conflict between the United States and Russia would likely result in 91.5 million casualties within the first few hours of the launch. The resulting nuclear fallout, radiation, and cooling of the earth’s atmosphere would result in the deaths of millions more.
Moxley says, however, that the law is one very small mechanism in the larger picture of global and nuclear conflict. When it comes to nuclear weapons, “the law hasn’t come to the forefront,” he said, “it doesn’t have the impact it should–it must have.”
Moxley repeated several times that while he is concerned about the geopolitical state of the world, hope is not lost. There is still time to reassess our policies and develop new laws. Jones commented as the lecture came to a close, “If there is no effort, there is no progress.”