Malcolm Rivera
The use of nuclear weapons and the potential authority to order a nuclear attack is a highly debated topic. The United States is the only country to have used nuclear weapons in war, dropping two atomic bombs on Hiroshima and Nagasaki in World War II. The legality of using nuclear weapons is a complex issue, with various international laws and humanitarian laws at play. The US Constitution grants the President the authority to defend against sudden attacks or preempt imminent attacks, but it does not give them the power to unilaterally declare war. The question of whether the President can act without prior authorization from Congress is a matter of debate, and the role of political leaders in containing strategic organizations during a nuclear crisis is also uncertain. The international community is divided on the legality of using nuclear weapons, and the United States has not signed or ratified the Treaty on the Prohibition of Nuclear Weapons (TPNW).
| Characteristics | Values |
|---|---|
| Country with nuclear weapons | United States, Soviet Union, Russia, China, North Korea, Iran |
| Country with nuclear capabilities | United States, Russia, China, North Korea, Iran |
| Country with nuclear weapons and not signed/ratified Treaty on the Prohibition of Nuclear Weapons (TPNW) | United States |
| Country with nuclear weapons and not attended the first meeting of states parties to the TPNW | United States |
| Country with nuclear weapons and voted against UN General Assembly resolution for negotiations on prohibiting nuclear weapons | United States |
| Country with nuclear weapons and voted against annual UN General Assembly resolution welcoming the adoption of the TPNW | United States |
| Country with nuclear weapons and consistently spending on nuclear forces | United States ($43.7 billion in 2022) |
| Number of nuclear weapons possessed | United States (approx. 5,244) |
| Locations of intercontinental ballistic missiles | Montana, North Dakota, Wyoming |
| Nuclear weapons use in war | United States (Hiroshima and Nagasaki, World War II) |
| Number of deaths from nuclear weapons use in war | More than 200,000 people instantly or within a few months |
| Number of subsequent deaths from illnesses caused by radiation exposure | Many thousands |
| Percentage of public support for TPNW in the United States | Baseline support of around 65% |
| Constitutional authority to defend against sudden attack or preempt an imminent attack | President of the United States |
| Constitutional duty to ensure control over nuclear weapons | Congress |
| Power to make war | President of the United States, Congress |
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What You'll Learn
Presidential power to employ nuclear weapons
The President of the United States has the sole authority to authorize the use of nuclear weapons. This power has been in place since the dawn of the atomic age, and the US is the only country to have ever launched a nuclear attack, during World War II against Hiroshima and Nagasaki.
In recent years, there have been increasing calls for this power to be curtailed, particularly during the presidency of Donald Trump, whose critics argued that he should not have unilateral control of nuclear launch authority. Various politicians, legal and national security experts have called for a new process requiring the involvement of multiple parties before a nuclear attack is authorized.
There are several proposals to constrain the president's power in this area. One proposal would require consensus among the president, vice president, and speaker of the House of Representatives—the two individuals next in line in the constitutionally mandated presidential chain of succession. Another proposal suggests that Congress should retrieve its delegated power over nuclear weaponry and establish a "council of state" within the office of the presidency with which the president must consult before taking important decisions, including those involving nuclear warfare.
The constitutional question concerns the President’s ability to respond to a threat of attack. It is undisputed that the President can respond defensively to an attack, but the nature of the response and the imminence of the attack are also considerations. The President possesses the constitutional authority to defend the country against sudden attack, or to preempt an imminent attack. However, Article II does not give the President the authority to take the country to war without congressional authorization.
In conclusion, while the President of the United States has the sole authority to employ nuclear weapons, there are constitutional questions and political concerns surrounding this power, particularly in the case of a first strike or preemptive attack. There have been proposals to constrain this power and require consultation with other parties before a nuclear attack is authorized.
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Congressional duty to control nuclear weapons
The Constitution grants Congress the power to declare war, and it stands to reason that this includes the decision to use nuclear weapons. Congress has a constitutional duty to ensure control over nuclear weapons, and the original meaning of the proper constitutional distribution of war power relates to the use of nuclear weapons. While the President has the authority to defend against a sudden attack or preempt an imminent attack, the power to take the country to war does not lie with them.
The Congressional Nuclear Weapons and Arms Control Working Group has announced additional oversight of US nuclear weapons spending, with Senator Edward J. Markey stating that "the United States cannot preach temperance from a bar stool". The working group aims to seek more transparency from the government on the Sentinel Program and curb unnecessary spending on nuclear weapons.
The Restricting First Use of Nuclear Weapons Act, reintroduced by Senator Markey and Representative Ted Lieu, aims to prohibit the President from launching a nuclear strike without prior authorization from Congress. The Act also seeks to institute safeguards to prevent the President from introducing nuclear weapons in a conflict. This legislation is a response to the threat of nuclear war posed by Russian President Vladimir Putin's reckless nuclear threats during his war on Ukraine.
The constitutional authority to use nuclear weapons is a complex issue. While the President has the power to act in self-defence, there are questions about the limits of this power and the role of Congress in authorising the use of nuclear force. The Supreme Court has asserted that it is the duty of the courts to interpret the law, but other branches of government, including Congress and the President, also make constitutional decisions.
The Congressional Study Group on Foreign Relations and National Security has discussed the command and control of US nuclear weapons, raising issues such as civilian control of nuclear technology and weapons development, and international legal and policy restraints on the use of nuclear weapons. The Group also addressed the question of when the use of nuclear weapons should be left to the President's unilateral authority.
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The legality of nuclear weapons under international law
International humanitarian law, also known as the laws of war or the laws of armed conflict, is the most important legal regime when considering the legality of the use of nuclear weapons. The key instrument is the 1977 Additional Protocol I to the 1949 Geneva Conventions, which includes the rule of distinction. This rule states that parties to a conflict may not "employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction". This rule is supported by the Martens Clause, which holds that civilians and combatants remain under the protection and authority of the principles of international law, even in situations not covered by specific rules.
The International Court of Justice (ICJ) has considered the legality of the threat or use of nuclear weapons, finding that the most directly relevant applicable law relates to the use of force, as enshrined in the United Nations (UN) Charter, and the law applicable in armed conflict, together with any specific treaties on nuclear weapons. The ICJ has indicated that the applicability of humanitarian law and the principle of neutrality to nuclear weapons is not disputed, but the conclusions to be drawn are controversial. The unique characteristics of nuclear weapons seem scarcely reconcilable with respect for the requirements of the law applicable in armed conflict.
The ICJ has not provided a definitive answer on the legality of nuclear weapons, stating that it "cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake". This has led to a stalemate in the legal debate, with some arguing that international law permits the use of nuclear weapons, while others maintain that their use constitutes a violation of international law.
Some argue that nuclear weapons can be justified if the damage to civilians is not excessive in relation to the anticipated military advantage, and there is no available alternative weapon that is less destructive. However, the margin for considering that a particular threat or use of nuclear weapons could be legal is extremely narrow. The use of nuclear weapons must also comply with the principle of proportionality, which prohibits causing incidental harm to civilians or civilian objects beyond what is required to achieve a military objective. Additionally, there is a general obligation for states to pursue negotiations leading to nuclear disarmament under strict and effective international control.
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The US's stance on the Treaty on the Prohibition of Nuclear Weapons
The US Constitution and nuclear attacks
The US Constitution does not explicitly address nuclear attacks, but it does grant the President the authority to defend against sudden attacks or preempt imminent ones. This power has been interpreted to include the ability to respond to threats with nuclear force, as evidenced by the country's nuclear policy structure that took shape by the late 1960s, which included the option to launch a nuclear attack if the Soviet Union attacked the US or its allies.
However, the Constitution's war powers and their interaction with nuclear capabilities have been a subject of debate, with some arguing that the President's power to unilaterally employ nuclear weapons offensively outside of retaliation raises serious constitutional questions about the proper distribution of war powers.
Now, regarding the US's stance on the Treaty on the Prohibition of Nuclear Weapons (TPNW):
The United States has not signed or ratified the TPNW, consistently voting against the annual UN General Assembly resolution since 2018, which calls on all states to adopt the treaty. The US Secretary of State, Antony Blinken, expressed the country's stance in December 2021, stating that seeking to ban nuclear weapons through a treaty that does not include nuclear-armed countries is unlikely to yield results. The US actively discouraged other nations from supporting the TPNW, even urging those that had ratified it to withdraw their support.
Despite this, there are signs of a shift in the US position. In September 2021, the US Under Secretary for Arms Control and International Security, Bonnie Jenkins, remarked that the US was no longer telling countries not to sign the treaty. Additionally, several members of the US Congress have criticized the decision to oppose the TPNW and expressed support for US accession. An opinion survey from 2021 found that around 65% of the US public supports the treaty. Furthermore, several US cities, including Boston, Los Angeles, New York City, and Washington, DC, have appealed to the government to sign and ratify the TPNW, and some states have passed resolutions in favor of it.
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The constitutionality of nuclear warfare
The use of nuclear weapons and the constitutionality of nuclear warfare have been widely debated and analysed, especially in the context of the US Constitution and its interpretation. The discussion often revolves around the President's authority to employ nuclear weapons unilaterally and the distribution of war powers.
The US Constitution, specifically Article II, grants the President the authority to defend against sudden attacks or preempt imminent ones. However, it does not give them carte blanche to take the country to war without authorisation from Congress. In recent times, some presidents have made broad assertions of authority to take military action without prior congressional approval, which has raised constitutional concerns.
The nature of the response to a nuclear threat and the imminence of an attack are also factors in the constitutional debate. While it is generally accepted that the President can respond defensively to an attack, the interpretation of “imminent” attacks and the appropriate response have been questioned. The historical context of surprise attacks and the Framers' understanding of them is also relevant to this discussion.
International law and the United Nations Charter further complicate the constitutionality of nuclear warfare. The International Court of Justice (ICJ) has considered the legality of the threat or use of nuclear weapons, concluding that the use of force provisions in the UN Charter apply regardless of the weapons employed. However, the ICJ could not conclusively determine the legality of nuclear weapons' use in extreme circumstances of self-defence, where a state's survival is at stake. The unique characteristics of nuclear weapons and their compatibility with humanitarian law and the principle of neutrality remain controversial.
Additionally, the constitutionality of legislation affecting nuclear power plant licensees has been debated. Proposed laws that would revoke licenses unless licensees meet certain conditions, including additional financial expenditures, have raised concerns about violating licensees' constitutional rights to due process.
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Frequently asked questions
The US Constitution does not explicitly deal with nuclear attacks, but certain parts are relevant to the discussion. Article II of the Constitution gives the President the authority to defend against sudden attacks or preempt imminent attacks, but it does not give them the power to unilaterally take the country to war.
The US Constitution does not explicitly address the use of nuclear weapons, but it gives the President the power to defend against sudden attacks or preempt imminent ones. However, the nature of the response and the imminence of the attack are important factors to consider.
The President has the constitutional authority to act without prior authorization from Congress, but this power is limited to defensive actions and does not include the ability to unilaterally declare war.
The constitutional concerns regarding nuclear attacks centre around the distribution of power to make war. The President's ability to unilaterally employ nuclear weapons offensively, outside of retaliation, raises serious questions about the proper distribution of war powers.
The legality of the use of nuclear weapons is a complex and unresolved issue. The International Court of Justice (ICJ) has considered the question but could not conclude whether the threat or use of nuclear weapons would be lawful or unlawful in extreme circumstances of self-defence. The ICJ emphasized the obligation to pursue negotiations leading to nuclear disarmament.
