On the Brink of Nuclear War, We have a Legal Duty to Abolish Nuclear Weapons, Marjorie Cohn


The following article was published in the May 2022 special issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 75-76 anniversary of the United Nations Charter.

On the Brink of Nuclear War, We have a Legal Duty to Abolish Nuclear Weapons

Marjorie Cohn

Today, we are closer to nuclear war than at any other time in more than a half century. As Russia continues its aggressive war in Ukraine, the nuclear threat is palpable.

Thus far, U.S. President Joe Biden has resisted calls for a no-fly-zone over Ukraine, which would mean shooting down Russian planes and risking a nuclear war. But Russian Deputy Foreign Minister Sergei Ryabkov warned the United States that it would consider the deliveries of Western weapons to Ukraine as targets. If Russia mounts an attack in a NATO country, other NATO members would become involved militarily under Article 5 of the North Atlantic Treaty.

Shortly after he ordered his army to invade Ukraine, Russian President Vladimir Putin announced that he was placing his country’s nuclear forces on “high combat alert.”

In 1996, the International Court of Justice (ICJ), issued an advisory opinion in which 10 of the 14 judges called the threat or use of nuclear weapons generally unlawful. The judges unanimously held that any use of nuclear weapons must be compatible with humanitarian law as well as with specific obligations under treaties and other undertakings. Half the 14 judges opined that the threat or use of nuclear weapons would be illegal even in the extreme circumstance of self-defense where the very survival of a State is at stake.

The UN Treaty on the Prohibition of Nuclear Weapons (TPNW), which has entered into effect since the 1996 ICJ advisory opinion, prohibits the transfer, use, or threat to use nuclear weapons or nuclear explosive devices. Parties to the TPNW pledge “never under any circumstances” to “develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices.”

A history of how various treaties aimed at reducing the threat of nuclear war have fared in the intervening years is instructive and illuminates why the threat is so great now.

The U.S. Pulls Out of Nuclear Treaties

The United States and Russia together control more than 90 percent of the world’s nuclear arsenal. But although they signed a joint statement earlier this year stating that “a nuclear war cannot be won and must never be fought,” the military doctrines of both Russia and the United States allow for the first use of nuclear weapons.

After the Cuban Missile Crisis in 1962, the United States had between a 10-1 and 20-1 advantage over the Soviet Union in its number of nuclear weapons, including bombers and intercontinental ballistic missiles, that could hit other countries. At that point, said American University history professor Peter Kuznick, appearing on Law and Disorder Radio, the Soviet Union moved for nuclear parity. Today Russia is the world’s greatest nuclear power.

In 2001, the George W. Bush administration withdrew the United States from the Anti-Ballistic Missile (ABM) Treaty, which had proven effective for 30 years. Now the ABM systems located in Poland and Romania can be retrofitted by NATO to allow deployment of offensive cruise missiles.

The United States and the USSR adopted the Intermediate-Range Nuclear Forces Treaty (INF) in 1987 in order to eliminate missiles on hair-trigger alert for nuclear war because of their short flight times. This was the first time the two countries agreed to destroy nuclear weapons. The INF outlawed nearly 2,700 ballistic or land-based cruise missiles with a range of roughly 300 to 3,000 miles.

The adoption of the INF led to the 1991 signing of the Strategic Arms Reduction Treaty (START), which drastically reduced the number of long-range strategic nuclear weapons. The New START, signed in 2010, required the U.S. and Russia to reduce the number of deployed nuclear warheads from a maximum of 2,200 in 2010 to 1,550 in 2018. This is the only agreement controlling U.S. and Russian nuclear weapons. But 1,550 nukes are still enough weapons to destroy both countries and indeed, the world, several times over.

On February 2, 2019, the Donald Trump administration suspended the U.S. obligations under the INF, which started a dangerous chain reaction. Russia pulled out of the treaty the next day. The three countries with the largest nuclear arsenals then rapidly test-launched nuclear-capable missiles. France conducted a test of its medium-range air-to-surface missile on February 4. The following day, the United States fired a Minuteman III intercontinental ballistic missile (ICBM). And an hour and a half later, Russia launched an RS-24 Yars ICBM.

Putin now controls 6,000 nuclear weapons. In 2018, Putin gave a state of the union address in which he announced that Russia has five new nuclear weapons able to circumvent U.S. missile defenses. Theodore A. Postol, professor emeritus of science, technology and national security policy at MIT, told Veterans for Peace’s Nuclear Abolition Working Group on March 11, 2022, “I think he’s deadly serious.” Postol, who evaluated Moscow’s anti-ballistic missile defense while serving as adviser to the chief of naval operations in the early 1980s, said Putin’s 2018 speech “made very clear that every attempt to engage us in constructive discussion has been met with no response. He was responding to the U.S. unwillingness to talk about missile defenses.”

After Putin invaded Ukraine and put his nuclear forces on high alert, all submarines have gone out to sea, and all land-based missiles are out of their sheds. Putin attacked the largest nuclear power plant in Europe, and started a fire in the adjacent building that created a danger of the spread of massive radioactive waste throughout Europe and Russia.

Postol warned that advances in nuclear weapons technologies are increasing the danger of an accidental nuclear war between the United States and Russia. Improvements in ballistic missile accuracy in the U.S. nuclear force modernization program drastically increases the killing power of each U.S. warhead, Postol said. In addition, Russia has a shorter warning time compared to the United States and thus its leaders cannot control the “action-reaction” because they don’t have sufficient information. Russia’s “dead hand” system that pre-delegates launch authority guarantees a launch even if the leadership is not in a position to order one.

“We have created a situation where Russia had no choice but to build a doomsday machine,” said Postol, who advocates separating war heads from the delivery systems.

The U.S. Nuclear Posture Review

January 22, 2022 marked one year since the TPNW, which the U.S. has not signed, entered into force. To mark that anniversary and in advance of the release of the Biden administration’s Nuclear Posture Review, Veterans For Peace (VFP) issued its own Nuclear Posture Review (NPR).

The Pentagon’s 2018 NPR allows the United States to use nuclear weapons in response to non-nuclear attacks, including cyberattacks, in “extreme circumstances to defend the vital interests of the United States, its allies and partners.” That would allow the U.S. to engage in the “first use” of nuclear weapons. Anti-nuclear activists are pressuring Biden to reverse Trump’s policies set forth in the 2018 NPR, including the first-use policy. The first use of nuclear weapons violates international law,  not to mention spelling disaster for the survival of life on the planet. VFP’s 10-page NPR replaces the goal of “full spectrum dominance” over the globe with “full spectrum cooperation,” as outlined below.

VFP also urges the U.S. to sign the TPNW. Eighty-six countries have signed the treaty and 57 nations have ratified it, making them parties to the TPNW. Once it had garnered 50 parties, the TPMW entered into force.

But the five original nuclear-armed countries — the United States, France, the UK, Russia and China — boycotted the treaty negotiations and the vote. Israel, North Korea, Pakistan and India, also nuclear-armed countries, did not participate in the final vote.

The U.S. Is Violating the Nuclear Non-Proliferation Treaty

The United States is a party to the 1970 Nuclear Non-Proliferation Treaty (NPT). But it continues to violate certain of its provisions. Former U.S. Secretary of Defense Robert McNamara said in 2005, “The U.S. government is not adhering to Article VI of the NPT and we show no signs of planning to adhere to its requirements to move forward with the elimination — not reduction, but elimination — of nuclear weapons.”

Since McNamara’s admonition, the United States has moved in the opposite direction. The Barack Obama administration advanced a policy, which Trump and Biden continued, to develop leaner and meaner nuclear weapons. The proposed U.S. budget calls for nearly $2 trillion over the next 30 years to build two new bomb factories, planes, missiles, submarines and redesigned warheads. “Obama should give back that Nobel Peace Prize and apologize,” according to Kuznick.

Veterans For Peace Issued an Alternative Nuclear Posture Review

VFP’s NPR urges the Biden administration to take the following steps:

  1. Implement a No First Use and No Launch on Warning (“Hair Trigger Alert”) policy that entails separating warheads from delivery vehicles;
  2. Decommission Intercontinental Ballistic Missile silos and weapons because they can only be used as a first strike weapon;
  3. Replace the president’s exclusive authority to launch a nuclear attack with a safer, collective process that is less likely to lead to a rash decision to launch nukes;
  4. End Terminal High Altitude Area Defense (a U.S. anti-ballisticmissile defense system to shoot down short-, medium-, and intermediate-range ballistic missiles), as well as other anti-ballistic missile systems;
  5. Sign and ratify the TPNW;
  6. Actively initiate and pursue negotiations with an aim toward reducing international tensions and a goal of effecting a major reduction in nuclear arms and promoting strategic stability;
  7. Summon all of the nuclear-armed countries to the table to negotiate a path toward nuclear disarmament, as required by the NPT;
  8. Join with China and Russia to negotiate space-ban and cyber-ban treaties;
  9. Ratify the Comprehensive Test Ban Treaty, which prohibits “any nuclear weapon test explosion or any other nuclear explosion” anywhere around the globe;
  10. Reimplement the Anti-Ballistic Missile Treaty and eliminate all missile “defense” systems;
  11. Reimplement the Intermediate-Range Nuclear Forces Treaty, which required the U.S. and the USSR to eliminate and permanently renounce all nuclear and conventional ground-launched ballistic and cruise missiles that had ranges of 500 to 5,500 kilometers;
  12. Work with U.S. allies to remove U.S. nuclear weapons that are stationed in the following NATO countries: Germany, Italy, Turkey, Belgium and the Netherlands;
  13. Recall to the United States all submarines armed with nuclear weapons, ground the nuclear bombers, and dismantle the missile sites;
  14. End the “nuclear modernization program,” which includes new nuclear weapons research, design, expansion, refurbishment, laboratory testing and sub-critical testing. Pass the Nuclear Weapons Abolition and Economic and Energy Conversion Act (HR 2850), which would redirect the funds to non-carbon, non-nuclear energy systems in order to reduce the impact of climate change and provide benefits to society;
  15. Appropriate adequate funding to clean up nuclear production and testing facilities, uranium mines and mills, and nuclear waste sites in the U.S. and Pacific nuclear test areas. Develop facilities and technologies to handle radioactive materials; and
  16. Create economic conversion plans to assist nuclear industry workers in making a transition to constructive employment.

U.S. Must Rejoin Iran Nuclear Deal and Negotiate Peace Treaty With North Korea

As the United States continues to violate the NPT, it maintains a threatening posture toward North Korea (which has nuclear weapons) and Iran (which doesn’t).

VFP has proposed that the Biden administration implement a five-point plan to revive U.S.- DPRK (Democratic People’s Republic of North Korea) talks and end the expensive “forever” U.S. war against that country. That plan includes: an agreement to implement the U.S.-DPRK Joint Statement from the Singapore Summit; the negotiation of a peace treaty to replace the outdated 1953 Korean War Armistice Agreement; ending all joint exercises between the U.S. and South Korea, Japan and other countries against the DPRK; lifting all sanctions against the DPRK; and the cessation of all threats against North Korea and removal of the U.S. missile system from South Korea.

In addition, VFP is calling on Biden to shift course in relation to Iran. The Trump administration withdrew the United States from the Iran nuclear deal. But after one year in office, Biden still has not rejoined the agreement despite his campaign promise. Pursuant to the Joint Comprehensive Plan of Action (JCPOA), Iran pledged not to enrich uranium above the level that could be used for a bomb, in return for the lifting of U.S. sanctions. After Trump renounced the JCPOA, he re-imposed the punishing sanctions on Iran. VFP urges Biden to lift the sanctions and re-enter the JCPOA.

As the possibility of a nuclear war increases, we have an even greater obligation to move swiftly toward the abolition of nuclear weapons, as required by international law.


All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.


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