NUCLEAR WEAPONS AND INTERNATIONAL LAW
IN THE POST COLD WAR WORLD
Charles J. Moxley, Jr.
Robert S. McNamara
David W. Leebron
Austin & Winfield, University Press of America (2000)
This book analyzes the lawfulness of the use of nuclear weapons under established rules of international law. The book concludes, following a detailed review of the applicable law and facts, that the use of nuclear weapons is per se unlawful and that the recognition of such unlawfulness is in the security interest of the United States.
The book analyzes the matter largely from the perspective of statements of the applicable law appearing in the military manuals and other statements of the United States and statements of the facts appearing in widely recognized sources. What emerges is that the use of these weapons is unlawful based upon the United States' own statements of the law and established facts as to the potential effects of such weapons.
The book also analyzes the 1996 advisory decision of the International Court of Justice (ICJ), the legal arm of the United Nations, which found the use of nuclear weapons to be generally unlawful but concluded that the Court did not have sufficient facts to determine whether the use of a limited number of low-yield nuclear weapons in situations of extreme self-defense could ever be lawful. Taking the step not reached by the Court, Professor Moxley assembles and analyzes the facts as to the effect of nuclear weapons, and assesses their impact on the legal analysis.
The book further exposes the disingenuousness of the United States' position before the ICJ to the effect that the United States is able to use nuclear weapons, particularly precision low-yield nuclear weapons, in such a way as to control their effects, including ostensibly their radiation effects and the escalations risks. Professor Moxley concludes that the United States distorted the facts and law in order to convince the Court to refrain from finding per se unlawfulness.
The book also addresses the legal issue not reached by the Court, the potential unlawfulness of the taking of even low level risks of extremely severe effects, analyzing the issue under principles of risk analysis widely followed by legal systems throughout the world and under widely recognized law as to potential war crimes liability for violations committed recklessly, willfully, wantonly, gross negligently or with other mental states short of specific intentionality.
During the Cold War, the United States substantially relied upon nuclear weapons for its national security. From the dawn of the nuclear era, the United States had permitted the Soviet Union to become superior in conventional weapons capability, relying instead on nuclear weapons and the policy of deterrence, whereby it threatened a nuclear response to a Soviet conventional attack.
Now the tables are turned. The United States is the pre-eminent conventional power threatened by nuclear and other weapons of mass destruction held by States far weaker in conventional weapons. In a sense, the United States no longer needs nuclear weapons, at least not in the way it did before.
Perhaps counter-intuitively, the recognition of unlawfulness would make a difference. As the United States lawyer, arguing the point in the 1996 Nuclear Weapons Advisory Case before the International Court of Justice, expressed it:
[E]ach of the Permanent Members of the Security Council has made an immense commitment of human and material resources to acquire and maintain stocks of nuclear weapons and their delivery systems.... If these weapons could not lawfully be used in individual or collective self-defense under any circumstances, there would be no credible threat of such use in response to aggression ....
Recognition of the unlawfulness of the use of these weapons would contribute to the adjustment of the military/industrial mindset to de-emphasize such weapons and orient training, contingency planning and weapons development and acquisition programs around conventional weapons.
It is a political and psychological phenomenon that a nation, like a person,
must be ready to have a particular insight, to integrate it into an overall
mindset. The subtext of this book is that the unlawfulness of the use and
threat of use of nuclear weapon is an idea whose time has come, and that this
idea could have a transforming impact on military training and planning, as
well as on military policy and practice, and hence on military confrontations
as they inevitably unfold among States over time.