Arms Control and International Security Papers 

Volume 11 Number 22 

November 13, 2020 

Law, Morality, and 

The Bomb 

by Christopher A. Ford 

The Arms Control and International Security Papers are produced by the Office of the Under Secretary of State for Arms 

Control and International Security in order to make U.S. State Department policy analysis available in an electronicallyaccessible format compatible with "social distancing" during the COVID-19 crisis. 
Arms Control and International Security Papers Volume I, Number 22 I November 13, 2020 

Law, Morality, and The Bomb 

Law, Morality, and The Bomb 

by Christopher A. Ford1 

In this paper presented to a panel hosted by the Global Security Institute and 

the American Bar Association, Assistant Secretary Ford explores some key legal 

and moral issues attendant to the possession and potential use of nuclear 

weapons, arguing for a more factually and morally nuanced approach than 

one normally hears from many disarmament advocates. 

Given the stakes involved, it is hardly surprising that 

few questions of security policy have elicited as much 

moral passion as nuclear weapons, and with good reason. 

Even though the number of nuclear weapons held by 

Washington and Moscow has fallen to only a small fraction 

of what it was during the Cold War, and ____ state-of-the-_ art 

modeling of combustion, soot-propagation, and climate 

science still has not settled the question of whether a 

minimal use of nuclear weapons could have a huge 

climate impact, there is no question that a war involving 

the use of nuclear weapons could still have catastrophic 

consequences. This grim fact necessarily entangles 

choices about nuclear weapons posture and doctrine with 

questions of morality in powerful and compelling ways. 

This moral salience also colors how it is that one should 

think about the legal aspects of nuclear policy. 

Citing the potentially existential stakes, the 

disarmament community has long claimed to feel a moral 

imperative to eliminate all nuclear weapons as quickly as 

possible. Acting on this, some disarmament advocates 

have made legal claims asserting the inherent 

unlawfulness of nuclear weaponry that, if true, would 

bring the law into line with their moral passion. 

One effort in this regard occurred at the International 

Court of Justice (ICJ), though there, in response to a 

request by the U.N. General Assembly for an advisory 

opinion, the Court ___________ in 1996 declined to find that nucle_ ar 

_________ weapons were per se unlaw_, ful pointedly leaving open the 

possibility that the threat or use of nuclear weapons could 

be lawful as a way to forestall catastrophic defeat in a 

conflict: 

"There is in neither customary nor conventional 

international law any comprehensive and 

universal prohibition of the threat or use of 

nuclear weapons as such .... [and] the Court 

cannot conclude definitively whether the threat 

or use of nuclear weapons would be lawful or 

unlawful in an extreme circumstance of selfdefence, in which the very survival of a State 

would be at stake." 

Ever since that opinion, some in the disarmament 

community have dreamed of revisiting the question, and 

of thereby obtaining a clear pronouncement on the 

unlawfulness of nuclear weapons. After having failed to 

make a convincing per se legal case against nuclear 

weapons on the basis of existing international law, 

moreover, campaigners have attempted to create new 

legal rules - specifically, with the Treaty on the Prohibition 

of Nuclear Weapons (TPNW). Nuclear weapons policy has 

many intertwined legal and moral issues, and I will focus 

1 Dr. Ford serves as U.S. Assistant Secretary of State for International Security and Nonproliferation, and is additionally performing the Duties of 

the Under Secretary for Arms Control and International Security. He previously served as Special Assistant to the President and Senior 

Director for Weapons of Mass Destruction and Counterproliferation on the U.S. National Security Council staff. 
Arms Control and International Security Papers Volume I, Number 22 I November 13, 2020 

Law, Morality, and The Bomb 

upon assessing some of the policy and moral arguments 

that form the subtext of such debates. 

In particular, I will argue herein against the 

unreflective moral certainties that characterize much of 

the contemporary disarmament discourse, and in favor o

a more factually and morally nuanced approach to these 

challenges. This is not likely to endear me to those whos

preferred mode of debate has traditionally consisted 

simply of fervent moralistic assertion. 

f 

e 

To my eye, however, if one seeks wise policymaking, 

certainty- not in the more salutary sense merely of 

confidence, but rather a full-throated belief in the inerrant 

and unquesitonable rectitude of one's position - can be a 

poison. This is true not just in issues related to the 

morality of policy choices, but also in legal analysis. 

Whether one agrees with Oliver Wendell Holmes, Jr., that 

"[t]he life of the law has not been logic: it has been 

experience"2 - or with Sir Edward Coke, that "[r]eason is 

the life of the law"3 - one must perforce admit that the law 

is animated by considerations that seek objectivity and 

rational analysis but may also be based on incorrect 

factual assumptions or principles. And, unless one has the 

intellectual humility to concede that it is at least possible 

one can get these objective considerations in some 

respect wrong, one is more likely actually to be wrong, and 

will in any event be unable to learn anything new.4 

With this in mind, I will explore herein some of the 

legal and moral issues raised by contemporary debates 

over nuclear weapons possession and nuclear doctrine. 

Some of the moral certainties of the modern disarmament 

community - with respect specifically to the nuclear 

weapons "Ban" Treaty and to the supposedly 

undifferentiated immorality of great power nuclear 

doctrines - are notably more problematic than their 

advocates admit. As I hope will become clear, however, I 

make this point less by way of repudiation than as an 

invitation to real dialogue, through which it may be 

possible to make more progress than would otherwise 

have been the case in nuclear risk reduction, and 

eventually to help facilitate disarmament. 

I. The "Ban" Treaty 

A. Legal and Policy Counterpoint 

In struggling with legal and moral issues associated 

with nuclear weaponry in recent years, it is impossible not 

to address questions related to the Treaty on the 

Prohibition of Nuclear Weapons- a.k.a. the "Ban Treaty." 

On one level, despite the rhetorical temperature 

sometimes associated with TPNW advocacy, it is easy to 

discuss the "Ban." 

The United States' position on TPNW has been clear 

from the outset, for instance, and so also has the position 

not just of other nuclear weapons possessors but also of 

the many allies who rely indirectly upon these possessors' 

nuclear weaponry for their own security. In the U.S. case, 

the beneficiaries of deterrence include more than 30 allies 

and partners. For Russia, one might perhaps count the 

Collective Security Treaty Organization (CSTO) states of 

Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Tajikistan. 

Together with the other countries that are known and 

proclaim themselves to have nuclear weapons, these 

necessarily anti-TPNW countries amount to a sizable 

proportion of the countries of the world, and the lion's 

share of its population and economic weight. 

2 Holmes, The Common Law (Boston, 1881), p. 1. 

3 Coke, Institutes of the Laws of England, or a Commentary on Littleton, (London, 1628), part 62a. 

4 Just as policymakers invite harm if they ascribe absolute certainty to legal or moral assertions which in reality depend to some degree 

upon context and factual presuppositions, so too is caution justified with regard to assertions of a scientific character. There, too, we deal 

not with absolutes but with probabilities, and these necessarily can ebb and flow as further facts come to light and experts test each 

other's hypotheses. This is quite normal, and indeed it would be worrisome, in either science or policy, were any given accepted facthowever venerable - to be declared entirely immune to question or testing. Any certainty of and about this world, therefore, must have 

caveats. Honesty and intellectual integrity, in effect, oblige us generally to rely upon accepted understandings, but only up to the point 

that such understandings have been convincingly scrutinized, while also requiring us both always to be open to the possibility that such 

understandings will be proven false, and to preserve the availability of ongoing inquiry that makes such testing possible. To fear error so 

much that one forecloses skeptical inquiry is in fact to err. (In the law, of course, where a genuinely controlling institutional authority 

exists - such as a court of highest appeal that has jurisdiction over policymakers' conduct- one is safe in ascribing "certainty" to the legal 

determinations that such authority adopts within its jurisdiction; indeed, we are required to. But that situation is not the one that 

concerns us here.) 

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Law, Morality, and The Bomb 

For countries that directly or indirectly rely upon 

nuclear weapons for security, the TPNW is a simple issue: 

we will not join it, we already consider it to be a failed 

treaty, and when it does enter into force, it will not bind 

us. The nuclear weapons-reliant states oppose the "Ban" 

not because we oppose disarmament, for we do not. 

(Even the People's Republic of China [PRC], which shuns 

nuclear arms control while now steadily building up its 

nuclear capabilities, at least claims to support 

disarmament.) Rather, we oppose the TPNW because it 

will not achieve its ends, approaches its objectives in a 

counterproductive way, could damage other institutions 

critical to international peace and security, and might 

even be strategically destabilizing. 

This is not primarily a legal critique, though indeed 

the vagueness of the TPNW in some respects raises more 

questions than it answers. That vagueness, however, will 

be more a problem for parties to that treaty than nonparties: as a legal matter, the "Ban" simply cannot bind 

non-parties. Moreover, the world's many states that rely 

on nuclear weapons have repeatedly and consistently 

signaled their rejection of a potential ban on nuclear 

weapons and their rejection of the idea that there is any 

hint of opinio juris5 in the mere fact of States not having 

used nuclear weapons since World War II - messages 

which should make clear to future jurists that no 

customary international legal norm against nuclear 

weapons is emerging.6 (This is a point that Stephen 

Schwebel, as Vice-President of the International Court of 

Justice in the Nuclear Weapons advisory proceedings, 

made forcefully: the practice of, acceptance of, and 

reliance upon nuclear weaponry "is not a practice of a lone 

and secondary persistent objector," nor merely that of a 

single "pariah Government crying out in the wilderness of 

otherwise adverse international opinion." Instead, this is 

"the practice of five of the world's major Powers ... 

[supported by] a large and weighty number of other 

States."7) Indeed, the text of the treaty itself fails to 

require non-possession of nuclear weapons, inasmuch as 

it does not actually prohibit States from joining while still 

having nuclear weapons, and only envisions them 

relinquishing such devices at an unspecified future date 

and under unspecified future circumstances. This is a 

point that the United States has made consistently in 

regard to international law generally, replete as it is with 

agreements that address, but do not prohibit per se, the 

possession or use of nuclear weapons.8 So there isn't 

much "legal" debate here. 

Rather than being fundamentally of a legal nature, 

therefore, criticism of the TPNW revolves around its 

structural defects as a policy matter- and, despite the 

presumably good intentions of most of its supporters, the 

instrument's problematic character from the perspective 

of practical morality. As I have ________ explained elsewhere in_ a 

__________ more detailed U.S. critique of the "Ban," the Treaty has 

fundamental flaws, some of them actually dangerous. 

The first of these flaws derives from the fact that the 

TPNW is, at best, doomed to be ineffective in achieving its 

ostensible objectives: it will not lead to the elimination of 

even a single nuclear weapon. The Treaty also provides no 

mechanism to verify such elimination even if it ever 

occurred. 

Nor are simple uselessness and incoherence the 

"Ban's" only flaws. TPNW supporters, particularly those in 

civil society, have opted to pursue states' signature and 

ratification of or accession to the treaty through a public 

campaign focused less upon genuine good-faith 

persuasion than upon demonization and 

confrontationalism - hardly an approach obviously 

consistent with the clear admonition in the Nuclear NonProliferation Treaty (NPT) for all states to work to __ ease 

tension and strengthen trust between states in order to 

___________ facilitate nuclear disarmament . Far from making 

disarmament more likely, the international politics of the 

"Ban" campaign will likely make it more difficult, by 

poisoning and undermining the cooperative state-to-state 

5 Opinio juris -the belief that adherence to a practice is required by law (rather than simply being desirable, for instance) - is one of the 

elements necessary in order to establish a rule of customary international law. 

6 It would, of course, be ironic for "Ban" proponents to argue that the fact that nuclear weapons haven't been used in armed conflict since 

1945 somehow supports the existence of a customary international legal norm against nuclear weapons, since that very fact results from 

nuclear weapons being deployed as part of deterrence strategies and policies. (Historically speaking, nuclear weapons have so far only 

been detonated in conflicts when only one country had them.) 

7 19961.C.J. Rep. at p. 312 (July 8) (dissenting opinion of Judge Schwebel). 

8 See, e.g., from the Nuclear Weapons advisory proceedings, Letter dated 20 June 1995 from the Acting Legal Adviser to the Department of 

State, together with the Written Statement of the Government of the United States of America, at 7. 

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Law, Morality, and The Bomb 

dialogue the world needs in order to ameliorate the global 

and regional conditions that stand in the way of progress 

toward "zero." 

In the process, the TPNW does nothing to contribute 

to the goals of the NPT, even as "Ban" politics have come 

increasingly to roil and complicate diplomatic discussions 

in the NPT review process. It cannot be seen as an 

"effective measure" towards nuclear disarmament, it 

relies upon a 1970s-era International Atomic Energy 

Agency (IAEA) nuclear safeguards model that the world 

has long known to be insufficient to provide confidence in 

compliance, and it provides that in the event of a conflict 

between the TPNW and the NPT, the TPNW would prevail 

for states that are party to both. 

These various factors alone are good reason for states 

to stand clear of the TPNW. They are also why it is, on the 

whole, a good thing that the Treaty's entry into force will 

be a legal non-event vis-a-vis possessor states and those 

states that refuse to join because they rely indirectly upon 

nuclear weapons for their security. The TPNW's deep 

structural flaws make it not merely counterproductive but 

potentially dangerous - and here, significant questions of 

morality intrude to undermine the strident moralism of 

"Ban" advocacy and raise the possibility that the TPNW 

might, in practice, have immoral effects. 

B. Moral Counterpoint 

One of the most disturbing aspects of the "Ban" 

movement is the potential geopolitical selectivity of its 

impact. The TPNW is the result of a campaign of civilsociety activism and grass roots pressure upon national 

legislatures and elected representatives, pushing them 

toward Treaty ratification or accession. Civil society 

activism is a well-established and entirely legitimate way 

to seek social change, of course, but in this context, the 

problem is obvious: ____________ nuclear weapons possessors that la_ ck 

a free press and use draconian tools of political oppression 

to suppress disfavored political activism in civil society are 

highly resistant – and arguably even immune – to such 

pressures 

Civil-society pressure tactics may have traction in the 

world's rights-based democracies, in other words, but by 

definition they are all but toothless vis-a-vis the nuclearweapons-wielding regimes of Vladimir Putin's thuggish 

and kleptocratic Russia, Xi Jin ping's increasingly brutish 

and autocratic China, and the belligerent and oppressive 

hermit dynasty of North Korea. If you are a Russian 

dictator who rules with a heavy hand, has turned domestic 

media into fawning vehicles for disinformation and proregime propaganda, brazenly rigs elections, and uses 

radioactive poisons and illegal chemical weapons in its 

attempts to murder political opponents at home and 

abroad, for example, what do you care if activists in 

Europe disapprove of your nuclear doctrine? Similarly, if 

you are a would-be Chinese "Red Emperor" in charge, for 

life, of a repressive state that surveils its subjects like no 

other tyranny in history, brutally suppresses dissent, and 

uses a vast network of prison camps and forced-labor 

facilities to "re-educate" religious minorities out of 

existence, disarmament-focused civil-society campaigns 

based in the West must appear little more than a joke. 

Actually it's worse than that. The leaders of Russia 

and the PRC in fact probably do care about and pay some 

attention to the TPNW campaign - but they certainly don't 

fear it. Instead, they surely approve of it, not because they 

would ever consider acceding to the Treaty, but rather on 

account of that campaign's asymmetric impact upon their 

regimes' geopolitical adversaries in Europe, East Asia, and 

the Americas. To the degree that it succeeds in influencing 

the legislators and politicians that it targets, the "Ban" 

approach has the potential to bring about nuclear 

disarmament only for those free, democratic societies that 

actually listen to their citizens' concerns. How could Putin 

and Xi not be delighted by a movement that creates 

divisive and paralyzing disarmament pressures in the 

major democratic states while placing no such pressure on 

decision-making in the Kremlin or in the Chinese 

Communist Party's leadership compound in 

Zhongnanhai? Surely these dictators pray for the TPNW's 

success in winning adherents among NATO members, or 

the United States' allies in East Asia. 

One hopes that no one associated with the "Ban" 

movement actually intends the TPNW crusade to be an 

enabler for authoritarian revisionism in Europe or Asia, bu

_____________ it could have that result nonetheless . And here is the 

fundamental moral problem at the core of the TPNW 

approach, for it can hardly be a moral imperative to create

a world in which dictators such as Putin, Xi, and Kim Jong 

Un are the only leaders left with nuclear weapons. If the 

Ban is successful in eliciting nuclear disarmament by the 

democracies, the TPNW could spur political divisions that 

destabilize the "extended deterrence" alliances that help 

prevent aggression by such revisionist dictators, thereby 

t 

4 
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Law, Morality, and The Bomb 

making Europe and East Asia more (not less) likely to 

collapse into war - possibly even nuclear war, and 

possibly causing states that currently benefit from 

extended deterrence to conclude that they need nuclear 

arsenals of their own. 

I have repeatedly confronted "Ban" activists over this 

problem, wondering how they intend to address the 

presumably unintended, dictator-empowering 

consequences of their work. While some of them have 

acknowledged the problem, however, no one has yet 

offered a solution, and any worries they might feel 

privately haven't slowed them down. Indeed, TPNW 

activists all but wear this asymmetry on their sleeve, often 

showing distressingly little apparent concern with nuclear 

threats arising outside the Western democracies. (When 

was the last time, for instance, that "Ban" activists 

demonstrated against China's nuclear build-up, insisted 

that Beijing agree to a moratorium upon the production of 

fissile material for nuclear weapons, or demanded that 

China join arms control talks with the United States? Or 

condemned Russia's large and growing arsenal of nonstrategic nuclear weapons and its development of bizarre 

and dangerous new nuclear-powered strategic nuclear 

weapons delivery systems? Or voiced concern about 

Russia, and possibly China, secretly conducting yieldproducing nuclear experiments in a manner inconsistent 

with the "zero yield" standards of the testing moratoriums 

of the U.S., the UK, and France? Or endorsed the United 

States' diplomatic efforts to achieve the final and fully 

verified denuclearization of North Korea and to impose 

permanent restrictions on the size and scope of Iran's 

nuclear program?) 

But things get even worse. For the sake of argument, 

even if the TPNW were actually to persuade all current 

possessors to eliminate their nuclear weapons, the world 

it would thus create would still not obviously be a more 

desirable one. A world in which all nuclear weapons had 

been dismantled, but in which states still knew how to 

build them and still confronted conflicts, tensions, and 

rivalries in the international security environment, might 

well be a world more unstable and likely to see nuclear 

weapon use even than today's world. As I outlined in our 

ACIS Paper discussion of nuclear weapons infrastructure 

i__ ssues , such a world might be characterized by 

"terribly destabilizing dynamics[,] not merely by 

giving countries powerful incentives in time of 

crisis to race each other to reconstitute nuclear 

arsenals, but also actually giving 

the first reconstituted possessor strong reasons 

to use nuclear weapons preemptively, before the 

other side got them too. Ironically, therefore, 

such crisis instability and nuclear use incentives 

might well make [such] a world ... more likely to 

result in nuclear war than today's world. (Not for 

nothing, for instance, did the great nuclear 

deterrence theorist Thomas Schelling describe a 

world free of nuclear weapons but capable of 

easily rebuilding nuclear weapons as hopelessly 

unstable: 'Every crisis would be a nuclear crisis, 

any war could become a nuclear war. The urge to 

preempt would dominate; whoever gets the first 

few weapons will coerce or preempt.')" 

And all this, moreover, is even without getting into the 

additional problem that a premature "Ban" might, as a 

foreign diplomat put it to me many years ago," __ make t_ he 

world safe again for large-scale conventional war 

between the major powers. World War II is today an 

increasingly distant memory, and it is easy to forget that 

the nuclear explosions that ended it were but a small 

fraction of the overall destruction and suffering that took 

place in six years of global warfare. It is also all too easy to 

overlook the counterfactual alternative to the world's 

great post-war peace - namely, the large-scale, great 

power wars that might have happened since 1945 but for 

the fact that nuclear deterrence has made them all but 

unthinkable. At least until more work has been done to 

ameliorate the tensions and conflicts that wrack today's 

world- ------------------ work that we are starting through our “Creating an 

Environment for Nuclear Disarmament” (CEND) initiative

by the way- the TPNW might actually make the world 

more prone to catastrophic conflict, whether nuclear or 

"conventional." 

Assuming that the objective is not to achieve 

"disarmament" at any cost but rather to strengthen 

international peace and security and prevent human 

suffering as thoroughly and effectively as possible, the 

situation is thus more complicated and problematic than 

TPNW advocacy would have one believe. The world the 

TPNW might actually create is not inescapably an 

attractive and morally compelling one even compared to 

today's world, let alone in comparison to some easy-toimagine future world of precisely the sort that current U.S. 

policy seeks to create, in which: 

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Arms Control and International Security Papers Volume I, Number 22 I November 13, 2020 

Law, Morality, and The Bomb 

a) an effective new arms control framework has 

prevented a spiraling three-way nuclear arms 

race between Beijing, Moscow, and Washington

b) new risk-reduction and confidence-building 

measures are in place between all nuclear 

w______ eapons possesso_, rs and frameworks of 

responsible behavior are understood to apply in 

fast-changing high-technology arenas such as 

c

____ yberspace and ___ outer spa~ ce

c) countries are engaged in deep and creative 

dialogue about how to ease tensions and 

strengthen trust in ways that facilitate further 

------- disarmament progre~ss·and 

d) the global nonproliferation regime has been 

shored up against rogue state proliferation 

and ____________ _ threats U.S. security arrangements continue 

to help prevent proliferation by states threatened 

by revisionist aggressive behavior

At the very least, the "Ban" seems nowhere near as 

morally compelling as its supporters claim; at worse, its 

proponents have dangerous blind spots. 

II. The Law of War 

The TPNW, however, is not the only question that 

should concern us about the legality and morality of 

nuclear weapons - nor the only area in which much of the 

disarmament community's conventional wisdom gets 

things wrong, overplaying the moral strength of its 

position and ignoring the case that can be made for 

nuclear weapons in the context of a thoughtfully riskattendant and deterrence-focused posture and policy. I 

certainly do not mean to suggest that all current nuclear 

weapons possessors necessarily have a morally defensible 

position. (As we shall see, this is not obviously the case.) 

But it is a crucial point that the disarmament community 

has not found consensus on the per se impropriety of 

nuclear weapons - and for good reason, since the facts 

are more complicated, and the case for such blanket 

impropriety rather weaker, than many TPNW supporters 

seem to realize. And the very complexity of the lived 

reality of nuclear weaponry points to the need to assess 

the legality and morality of possessors' nuclear weapons 

policies and postures individually: at the retail, as it were, 

rather than the wholesale level. 

A. A Legal and Moral Yardstick 

The principles of military necessity, propotionality, 

distinction, and humanity form part of the core of 

International Humanitarian Law (IHL) - a.k.a. the law of 

armed conflict (LOAC) - and provide part of the corpus of 

jus in be/lo (lawful conduct in war), complementing 

doctrines regarding when it is lawful to resort to force in 

the first place Uus ad bellum) to provide a comprehensive 

legal framework. As the ICJ confidently observed in its 

1996 advisory opinion, "there can be no doubt as to the 

applicability of humanitarian law to nuclear weapons": 

"A threat or use of nuclear weapons should ... be 

compatible with the requirements of the 

international law applicable in armed conflict, 

particularly those of the principles and rules of 

international humanitarian law, as well as with 

specific obligations under treaties and other 

undertakings which expressly deal with nuclear 

weapons .... " 

Accordingly, any use of nuclear weapons is subject to the 

"cardinal principles ... of humanitarian law," just as are all 

other means and methods of warfare. Of these principles, 

the ICJ observed, 

" ... [t]he first is aimed at the protection of the 

civilian population and civilian objects and 

establishes the distinction between combatants 

and non-combatants; States must never make 

civilians the object of attack and must 

consequently never use weapons that are 

incapable of distinguishing between civilian and 

military targets. According to the second 

principle, it is prohibited to cause unnecessary 

suffering to combatants: it is accordingly 

prohibited to use weapons causing them such 

harm or uselessly aggravating their suffering." 

Moreover, with respect to the jus ad bell um, the use of 

force in any lawful case of self-defense against armed 

attack "would warrant only measures which are 

proportional to the armed attack and necessary to 

respond to it, a rule well established in customary 

international law." 

The Court observed that the rules governing the use of 

force set forth in the United Nations Charter - under which 

States must "refrain in their international relations from 

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Law, Morality, and The Bomb 

the threat or use of force against the territorial integrity or 

political independence of any State, or in any other 

manner inconsistent with the Purposes of the United 

Nations" but retain the inherent right of individual or 

collective self-defense if they face armed attack - also 

apply in the case of nuclear weapons. Moreover, the ICJ 

reminds us, "[t]hese provisions do not refer to specific 

weapons. They apply to any use of force, regardless of the 

weapons employed." Similarly, the Court rejected any 

argument that nuclear weapons are not subject to the 

established principles and rules of IHL as "incompatible 

with the intrinsically humanitarian character of the legal 

principles in question which permeates the entire law of 

armed conflict and applies to all forms of warfare and to 

all kinds of weapons, those of the past, those of the 

present and those of the future." As the United States in 

its submissions to the ICJ at that time observed, "[a]s in 

the case of other weapons, the legality of use depends on 

the conformity of the particular use with the rules 

applicable to such weapons."9 

Given the extraordinary destructiveness of nuclear 

weapons, their threat or use to conduct attacks must be 

carefully considered for its consistency with IHL, but as we 

have seen, the Court, even in the face of intense pressure 

to do so, did not conclude that their threat or use would 

be unlawful in all circumstances. As the Court's discussion 

makes plain, it is thejus ad bellum andjus in be/lo - and 

not the mere desires or assertions of those who have 

advanced the TPNW - that provide us with compelling and 

widely-recognized standards for evaluating not merely the 

legality but also the morality of a country's nuclear 

weapons policies. 

And it is here that the disarmament community - in its 

disdain for complexity and nuance, and in its thirst for the 

crystalline clarity of one-size-fits-all moral 

pronouncements - has often gotten things wrong. Such 

monodimensional moralism has tended to impede actual 

efforts to compare nuclear weapons postures and 

doctrines, thus not merely obscuring important points but 

also making it harder to identify opportunities for legal 

and moral progress therein. To help fill this gap, however, 

and to identify risk reduction opportunities consonant 

with the noble aspirations and clear-eyed pragmatism of 

the law of war, it is useful to offer some comparisons. 

B. The United States 

By far the most forthcoming among the nuclear 

weapons possessors when it comes to issues of doctrines, 

postures, policies, budgets, and future plans, the United 

States offers a model of transparency and clarity in the 

nuclear weapons arena. There is, of course, no reconciling 

U.S. nuclear weapons policy with those who still insist that

there is no legal or moral case for nuclear weapons 

possession at all. For those more inclined to evaluate 

matters under established principles of international law 

and morality, however, U.S. approaches hold up well. 

As for the ICJ's proposition leaving open the 

possibility of lawful nuclear weapons use, this, to recall, 

refers to "an extreme circumstance of self-defence, in 

which the very survival of a State would be at stake." It is 

noteworthy- and no coincidence - that U.S. nuclear 

doctrine has long stressed that the use nuclear weapons 

could only make sense in extreme circumstances. In the 

__________ 2010 Nuclear Posture Review (NPR), for instance, it was 

declared that "[t]he United States would only consider the 

use of nuclear weapons in extreme circumstances to 

defend the vital interests of the United States or its allies 

and partners." The __________ 2018 Nuclear Posture Review repeats 

this declaration, and emphasizes, in fact, that "[a]ll U.S. 

Presidents since 1945 have considered U.S. employment 

of nuclear weapons only in extreme circumstances and for 

defensive purposes." 

In the 2018 NPR, moreover, we offered unprecedented 

clarity about what might conceivably count as such 

"extreme circumstances." As we explained: 

"Extreme circumstances could include significant 

non-nuclear strategic attacks. Significant nonnuclear strategic attacks include, but are not 

limited to, attacks on the U.S., allied, or partner 

civilian population or infrastructure, and attacks 

on U.S. or allied nuclear forces, their command 

and control, or warning and attack assessment 

capabilities." 

U.S. declaratory policy on nuclear deterrence in this 

context finds compelling justification as a component of 

collective defense, exclusively against the most dire of 

threats, and in connection with protecting the vital 

9 Letter dated 20 June 1995 from the Acting Legal Adviser to the Department of State, together with the Written Statement of the 

Government of the United States of America, at 2. 

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Law, Morality, and The Bomb 

interests of not just the United States itself but also those 

aforementioned "allies and partners" - that is, the 

numerous democracies of the North Atlantic area and 

Pacific Rim who rely upon U.S. "extended" nuclear 

deterrence for their own safety, and perhaps even for their 

continued existence as independent sovereign states, in 

the face of potential aggression by Russia, the PRC, or 

North Korea. 

The United States also recognizes the applicability of 

IHL to any potential use of nuclear weapons, and U.S. 

doctrine and nuclear weapons policy guidance make this 

quite clear. The _____________ U.S. Department of Defense Law of Wa_ r 

___ Manual provides an extraordinary depth of guidance on a 

range of law of war issues, and standing nuclear policy 

guidance specifies that such rules also apply to nuclear 

weapons. The2013 __________ Report on Nuclear Employme_ nt 

S__________ trategy of the United States , for instance, specified that 

"all plans must also be consistent with the 

fundamental principles of the Law of Armed 

Conflict. Accordingly, plans will, for example, 

apply the principles of distinction and 

proportionality and seek to minimize collateral 

damage to civilian populations and civilian 

objects. The United States will not intentionally 

target civilian populations or civilian objects." 

As one former Commander of the U.S. Strategic Command 

summarizes, 

" ... [i]t is clear that U.S. policy-makers were 

mindful of ethical concerns as they sought to 

strike a careful balance among the high (perhaps 

unavoidable) potential for collateral damage from 

nuclear weapons, the principle of military 

necessity, and the critical importance of nuclear 

deterrence to our national security and that of our 

allies. The desire to strike that balance certainly 

influenced the evolution of U.S. nuclear policy."10 

In U.S. practice, moreover, deep involvement by 

military and Defense Department civilian lawyers in 

nuclear planning and operational matters is also today a 

matter of well-established routine, such lawyers being an 

official part of formal and informal planning, targeting, 

and operational processes and reviews precisely in order 

to ensure consistency with the law of war and relevant 

implementing guidance. All uniformed members of the 

U.S. armed forces are also bound by the Uniform Code of 

Military Justice (UCMJ), under which they are obliged to 

refuse to follow orders that are clearly unlawful or that 

they know to be unlawful, such as orders that direct 

violations of the law of war. 

Furthermore, though this is not strictly a legal factor, 

the United States has for decades invested enormous 

amounts of money and manpower in ensuring that the 

President has as many options available to him or her -

and as much time in which to make decisions - as 

possible, even in a nuclear crisis. U.S. nuclear commandand-control has long been structured to _____ maximize time _ for 

_____ decision-making _, to include trying to preserve the option 

of "riding out" a nuclear attack rather than being forced 

into "use or lose" launch decisions. At present, a 

modernization of the U.S. National Command, Control, 

__________________ and Communications (NC3) system is also underway , to 

ensure that even under the most challenging conditions, 

leaders can still detect threats, formulate plans, identify 

targets, issue orders, and assess the results of combat 

operations. Keeping the NC3 system functional and 

resilient even in the face of growing potential threats -

which arise not only from increasingly numerous Chinese 

intercontinental-range nuclear delivery systems and more 

sophisticated Russian ones, but also from long-range 

precision-guided conventional munitions, direct-ascent 

and on-orbit counter-space weapons, and cybertools -

has not merely an operational but also a compelling legal 

and moral aspect, for this system is intended to preserve 

command and control in a crisis that is instrumental for 

effectively making and implementing nuclear decisions in 

conformity with a coherent and rational U.S. policy, and 

with the law. 

All in all, the United States has established formidable 

doctrinal and procedural safeguards, including review and 

advice by lawyers, into its military operations, and nuclear 

weapons policy is no exception. Particularly in the 

broader moral context of its nuclear forces' fundamental 

objective of deterring aggression, the United States stands 

in both a strong legal and a strong moral position in 

defending its careful and nuanced approach to nuclear 

weapons policy. 

8 

10 C. Robert Kehler, "Nuclear Weapons and Nuclear Use," Daedalus (Fall 2016), at 50, at 58. 
Arms Control and International Security Papers Volume I, Number 22 I November 13, 2020 

Law, Morality, and The Bomb 

C. The Russian Federation 

By contrast, there are reasons to be concerned about 

the conformity of Russian nuclear policy with wellestablished international legal rules and principles. 

President Vladimir Putin's June 2020 declaration of 

nuclear weapons policy speaks in general terms, for the 

most part unproblematically, about the importance of 

nuclear deterrence, and declares that Russia 

"reserves the right to use nuclear weapons in 

response to the use of nuclear and other types of 

weapons of mass destruction against it and/or its 

allies, as well as in the event of aggression against 

the Russian Federation with the use of 

conventional weapons when the very existence of 

the state is in jeopardy." 

Russia argues that its doctrine conforms with 

international law, that it has nuclear weapons only for 

defensive and deterrent purposes, and that they would 

only be in extremis, and one hopes that this is indeed the 

case. 

Worryingly, however, Putin's guidance specifies that 

one "possibility of nuclear weapons use by the Russian 

Federation" is upon "arrival of reliable data on a launch of 

ballistic missiles attacking the territory of the Russian 

Federation and/or its allies" - apparently irrespective of 

the circumstances of such attack (e.g., whether or not the 

missiles are armed with conventional or nuclear 

warheads, or whether the "territory" in question is 

inhabited by anyone). This explicit heedlessness to 

circumstance is apparently not an accident of phrasing, 

but is the very point: as two senior officers from the 

Russian General Staff recently reemphasized in the official 

military newspaper Krasnaya Zvezda, "[a]ny attacking 

missile will be perceived as carrying a nuclear warhead." 

Especially coming from a country that itself possesses 

a very large arsenal of ballistic missiles that are capable of 

carrying either conventional or nuclear warheads, it is not 

obvious - to say the least - how such a threat of nuclear 

use in response to any missile attack would always be 

consistent with thejus ad bel/um requirements of 

necessity and proportionality. One should certainly be 

careful not to draw firm conclusions about doctrine from 

press commentary, but more clarity and transparency on 

such issues is essential, for these points raise potentially 

troubling questions. 

Another disturbing sign comes with Russia's 

development of the Poseidon nuclear-powered 

underwater drones that it apparently intends to fit with 

multi-megaton nuclear warheads and launch across the 

ocean in wartime in order to inundate U.S. coastal cities 

with radioactive tsunamis. The very operational concept 

of the Poseidon - involving an enormously destructive 

warhead dispatched without possibily of recall on a transoceanic passage that could take days- raises serious 

questions about the extent to which it could be used in 

compliance applicable international legal rules and 

principles. 

Questions might also arise in connection with the socalled Perimeter - or Mertvaya Ruka ("Dead Hand") -

system that some media accounts claim was built by the 

Soviets in the 1980s and would seem to have been kept in 

service, and the existence of which the commander of 

Russia's Strategic Rocket Forces apparently confirmed in 

2011. If one assumes that this system actually exists and 

functions as reported, if switched on by the high command 

in time of crisis, Perimeter would apparently automatically 

launch the country's nuclear arsenal if it detected nuclear 

explosions in Russia and its computer brain could not 

thereafter establish communications links to the General 

Staff. For anyone concerned with the morality of nuclear 

weapons, Perimeter surely raises disturbing questions. 

Can Russia defend Perimeter as anything more than just a 

vindictive and barbaric fun-house mirror vision of 

apocalyptic retribution? Russia would seem to have a lot 

of explaining to do. 

It is thus particularly disturbing, that Russian officials 

in another arena - specifically, cyberspace - have recently 

begun openly to question the applicability of LOAC 

principles to the complexities of modern armed conflict. 

As I have noted elsewhere 

" ... Russian government officials ... have recently 

tried to walk back aspects of their prior 

commitment to and acceptance of important 

declarations ... about the applicability of 

international humanitarian law to cyber 

operations in armed conflict. Where once 

Moscow agreed with the common sense and 

morally inescapable position that IHL principles 

such as military necessity, proportionality, 

distinction, and humanity would apply to cyber 

attacks in wartime just as they apply to kinetic or 

any other form of attack, now the Kremlin's 

9 
Arms Control and International Security Papers Volume I, Number 22 I November 13, 2020 

Law, Morality, and The Bomb 

representatives have begun to equivocate, 

suggesting that it might be 'impossible' to apply 

IHL in cyberspace because it is hard to distinguish 

between 'civilian' and 'military' objects in that 

domain. 

"Such claims are false - for it is not impossible to 

apply IHL in cyberspace, and it is not impossibly 

hard to distinguish between legitimate and 

illegitimate targets in cyberspace during armed 

conflict - and are quite alarming, inasmuch as 

such Russian logic would seem also to justify 

indiscriminate massacres of civilians during 

armed conflict if it is 'too hard' to distinguish 

between civilians and combatants. With ongoing 

Russian efforts to lay the groundwork for attacks 

using cyber assets against critical infrastructure 

that supports basic necessities of civilian life, 

Moscow's effort to retreat from acknowledging 

the applicability in cyberspace conflict of the IHL 

principles of necessity, proportionality, 

distinction, and humanity suggests that the 

Kremlin is comfortable with needlessness, 

disproportion, indiscriminateness, and inhumanity 

in contemplating future cyber attacks against 

civilians." 

With Russian officials suggesting it would be futile 

even to try to apply the law where it is difficult to 

distinguish between civilian and military actors, and 

employing nuclear tools such as Poseidon (and perhaps 

Perimeter), this raises real questions about whether Russia 

would follow legal principles in the conduct of nuclear 

operations. This should concern the rest of the world and 

shou Id be a matter of conspicuous attention - not least by 

the disarmament community, but also in the ongoing 

Strategic Security Dialogue (SSD) and the continuing arms 

control talks between U.S. and Russian officials over 

nuclear doctrine and transparency. 

D. The People's Republic of China 

Nor can one be much more sanguine about the PRC's 

nuclear policy, notwithstanding the sanctimonious 

moralism of Beijing's virtue-signaling about supposedly 

following a policy of "minimum deterrence" and nuclear 

"no first use" (NFU). Part of the reason for concern is 

simply that the PRC is extraordinarily opaque about its 

nuclear posture and doctrine, even while ------

expanding both 

the size and diversity of its nuclear arsenal at a rapid pace 

and rejecting all calls to participate in arms control 

dialogue with the United States and Russia. 

But there is more to it even than that. Beijing makes 

much of its supposed NFU policy, but few foreign 

observers take that policy terribly seriously, that policy 

does not preclude initiating destabilizing nuclear threats 

against another nuclear power in a crisis, and there are 

signs that the PRC may be revising its policy in any event. 

Even if PRC officials actually mean what they say in 

peacetime, moreover, there is little reason to think they 

could be depended upon to refrain from nuclear use if 

faced with defeat in a purely conventional conflict. In 

general, after all," ____________ NFU statements seem pretty useles_ s: 

they can truly be credited only when they are unneeded, 

and where they would be the most consequential, they are 

at their most unreliable "11 

As for Beijing's ostensible policy of "minimum 

deterrence," this is in Chinese usage a phrase of 

spectacularly indeterminate meaning, and thus in no way 

actually reassuring. After all, the PRC's current crash 

nuclear buildup is taking place in a strategic context in 

which the nuclear threats facing Beijing from Moscow and 

from Washington have fallen precipitously, by a stunning 

total of more than 60,000 warheads, since their high points 

in the 1960s and 1980s respectively. Despite the 

extraordinary shrinkage of the nuclear forces arrayed 

against it, however, Beijing is rapidly expanding its nuclear 

force. What could "minimum deterrence" possibly mean 

in this context, except as a meaninglessly feel-good 

propaganda cloak to wrap around a destabilizing policy of 

arms racing? 

11 "No first use" is s

______________ ynonymous with the “sole purpose” theory - i.e., the idea that the "sole purpose" of nuclear weapons is to deter the use 

of oth:r~uch weapons - e_____________________ mbraced by U.S. Vice President Joe Biden as recently as January 20_,17 and in U.S. usage would amount to a 

r_epud1at1on of the use of nu~l:ar deterrence to protect U.S. allies in Europe or East Asia from conventional invasion by Russia or China. In 

~1ght of th~ de'.11onstr~~ed w1ll1ngn~ss of at least one of the latter two powers to use conventional force against its neighbors to advance 

illegal terntonal amb1t1ons, the United States embracing "no first use" or "sole purpose" would be profoundly destabilizing. 

10 
Arms Control and International Security Papers Volume I, Number 22 I November 13, 2020 

Law, Morality, and The Bomb 

The very concept of "minimum deterrence" is also at 

best questionable here, for it raises questions about the 

degree to which Beijing relies upon countervalue targeting 

(i.e., the deliberate targeting of civilian population centers, 

as such) instead of counterforce targeting (i.e., targeting 

adversary military capabilities). China's apparent 

embrace of countervalue targeting should certainly 

trouble the disarmament community, who should join the 

United States in asking tough questions about the 

lawfulness of Chinese nuclear doctrine under LOAC and in 

demanding far more transparency and clarity from Beijing 

about its approach to nuclear weapons. 

Ill. Conclusion 

It is hard not to conclude that the moralistic fervor of 

both poles of the modern disarmament debate has helped 

impede serious analysis of the legality and morality of 

nuclear weapons postures and doctrines, and therefore 

also the development of sensible approaches to nuclear 

risk reduction. Throughout the nuclear age, and 

seemingly accelerating after the end of the Cold War -

illustrating the insight that demands for more rapid 

progress can be most strident, most likely to deny the fact 

of progress, and most prone to counterproductive 

overreaching, when progress is already underwaydisarmament debates for too long slipped into a cycle of 

polarization and stalemate. 

In this dynamic, it was too often the case that what 

should be constructive dialogue has degenerated into 

reciprocal demonization. For the citizens of modern 

societies that have depended for decades on nuclear 

deterrence to keep the peace, appreciation for the 

potential horrors of nuclear war has all too often provoked 

either a guilt-ridden reflex of performative anti-nuclear 

virtue signaling, or a similarly reactive and angrily 

uncritical per se rejection of any possibility of arms control 

or disarmament. In both cases, rather than seeking sound 

policymaking appropriate to the circumstances, moral 

positioning vis-a-vis The Other has tended to become the 

imperative, and even a question of personal identity. This 

has frequently produced what is, in effect, a conspiracy 

against serious policy, as both sides have worked to turn 

what ought to have been a challenge of wise 

statesmanship into a game of antagonistically selfexculpatory identity politics. 

I have argued that the legal and moral issues of 

nuclear policy are not so clear and so simple as many 

suppose - but to suggest also that if one can get past the 

reflexive moral imperatives and identities of traditional 

disarmament discourse, there is much we can 

constructively discuss and perhaps improve. In particular, 

I have tried to show that there is a moral case to be made 

both for deterrence and for a nuanced approach that 

admits that doctrines matter and that all such doctrines 

are not "created equal" from a legal or a moral 

perspective. lfwe understand this, we can perhaps make 

progress in reducing risks and encouraging more 

genuinely moral (and lawful) choices by states possessing 

nuclear weapons until such time as such weapons can be 

safely and sustainably eliminated. 

This analysis also points to the importance of 

transparency and honesty about doctrine and posture, 

since without this, real dialogue will be virtually 

impossible. It also suggests how vital it will be to develop 

opportunities for dialogue, particularly where - as with the 

recent U.S." ____________ Creating an Environment for Nucle_ ar 

________ Disarmament” Initiative -such _____ security-focuse_ d 

____ engagement finally begins to _______ reframe disarmamen_ t 

discourse in ways cognizant of the issues that will need to 

__________ be managed and overcome by the international 

community in order to ___________ ease tension and strengthen tru_ st 

between states in order to facilitate disarmament 

Arms Control and International Security Papers 

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