Amidst the sabre-rattling on the Korean Peninsula, the Russian provocations throughout the globe, and fledgling nuclear programs sprouting in developing nations, the world is once again on the precipice of nuclear war. What exactly are our legal protections and obligations in the event of a nuclear strike? This paper attempts to analyze current international law and postulates what elements would be necessary (or prudent) in future treaties.

1. Ben Cook Jr.
Arms Control Seminar
LEGAL MECHANISMS WITH WHICH TO
COPE WITH A NUCLEAR ATTACK
A Look at Current International Law with Proposals for the Future

2. Cook 1
I. The World’s International Legal Efforts to Protect Itself
In nuclear war, all men are cremated equal.
- Dexter Gordon1
Almost every paper on the subject of nuclear weapons, nuclear weapons treaties, and
nonproliferation starts with a sentence harkening back to the end of World War II, when the world
was changed forevermore by the first uses of nuclear weapons in human history. When discussing
the topic, Hiroshima and Nagasaki are excellent starting points. These two events singlehandedly
changed the international law environment and sent humanity to the brink of self-extinction.
The many treaties that arose from the irradiated ashes of those first atomic bombs have set
the landscape of international arms control law. Like a child traversing a dark room, arms
outstretched and fumbling through obstacles, the international community has stumbled its way into
a contradictory state of violent nuclear peace. Deterrence, international pressure, and pure,
unadulterated (if not always conscious) common sense have stayed world leaders’ fingers from the
proverbial red buttons for decades.
These factors require some sort of identity that states can personify in order to conduct
themselves as participating members in the international community. It should be no surprise,
then—since total atomic annihilation has not yet befallen society—that international law has played
a monstrously large role in preserving nuclear peace. It is for these reasons, inter alia, that the
International Atomic Energy Agency (IAEA) has come to embody international arms control law.
Perhaps the greatest shining star that the IAEA orbits is the Treaty on the Non-Proliferation
of Nuclear Weapons (NPT). The NPT, to which a majority of nations are parties, requires that
IAEA safeguards are to be implemented to prevent peaceful nuclear material from becoming
1 Quoted from Brainyquote.com, accessed on 11/13/2015,
http://www.brainyquote.com/quotes/quotes/d/dextergord197934.html

3. Cook 2
weaponized.2
These safeguards are meant to keep states accountable, nuclear material accounted for,
and the NPT enforceable.3
An important aspect of IAEA safeguards to note is the inspection
process. Under the various mandatory agreements under the NPT, individual states must declare the
nuclear material housed at their facilities—facilities that the IAEA are entitled to examine for
consistency. As part of these examinations, the IAEA samples state-declared nuclear material and
conducts environmental tests to verify that the state has abided by its agreements.4
The IAEA’s nuclear data is vital in keeping a state accountable for its nuclear material. If the
IAEA’s examinations are thorough and accurate, then the type, size, and makeup of the nuclear
material is documented in order to help track down any materials swiped by a precocious, pilfering
party, such as terrorist groups, political extremists, or other potentially hostile actors. Although not
explicitly laid out for this reason in the NPT (due to the NPT being signed in the sixties), this
precaution built into the NPT and IAEA safeguards is vital in the event that a state does not comply
with the Convention on Physical Protection of Nuclear Material (CPPNM).
The CPPNM provides safeguards and punishments for violation of said safeguards in the
transport of nuclear materials.5
In a volatile world, filled with threats of terrorism and extremist
factions, the theft of nuclear materials is a very real possibility. As history—and in most cases,
film—has taught, the most efficient way to raid an enemy’s cache of supplies is to nab what is
sought while the supplies are in transit. The CPPNM aims to ease states’ minds as to their nuclear
transports and, more importantly, to create a duty for states to aid in the event of lost nuclear
2 Treaty on the Non-Proliferation of Nuclear Weapons art. III, July 1, 1968, http://go.usa.gov/3dKam [hereinafter
NPT].
3 Int’l Atomic Energy Agency [IAEA], The Statute of the IAEA art. XII (July 29, 1957).
4 IAEA, IAEA Safeguards Serving Nuclear Non-Proliferation, at 16 (June 2015).
5 Convention on Physical Protection of Nuclear Material art. 2, 3, March 3, 1980, http://go.usa.gov/3dX7j [hereinafter
CPPNM].

4. Cook 3
material.6
Once material goes missing, states party to the CPPNM have a duty to inform other
states—states that could be of concern, such as border states, allies, and potential thieves’ dens—of
the missing materials, and seek aid if necessary.7
Through the NPT and the CPPNM, the international community has taken precautions to
keep materials accountable, safe, and secure. States are required by international law to report and
lend aid. However, as the proverbial saying suggests, “stuff happens.” In every venture to prevent an
occurrence, there should also be a venture to correct if the occurrence occurs. The international
community determined to rectify at least the question of civil liability in the Vienna Convention on
Civil Liability for Nuclear Damage. The Vienna Convention, while not all-encompassing, is a
measuring stick in regards to the international community’s views on liability in the event of a
nuclear accident.8
The Vienna Convention was one of many conventions held to gather a consensus on nuclear
liability. The general agreements, however, can be summarized as follows: liability is confined to the
operators of the nuclear facilities at issue, under an absolute liability standard, with a statutory time
limit of ten years.9
This is an important standard to keep in mind as discussions turn to the actions
taken after a nuclear attack. However, with these conventions dictating liability, definitions were
needed. As a follow-up document to the Vienna Convention, the Convention on Supplementary
Compensation for Nuclear Damage (CSC) was created. The CSC—unlike the Vienna Convention—
was signed by the United States and aims to create a liability regime and system of compensation for
6 CPPNM, supra note 5, at art. 5.
7 Id.
8 Vienna Convention on Civil Liability for Nuclear Damage, May 21, 1963,
https://www.iaea.org/publications/documents/conventions/vienna-convention-on-civil-liability-for-nuclear-damage
[hereinafter Vienna Convention].
9 Id.

5. Cook 4
nuclear damage.10
Nuclear damage includes, inter alia, loss of life or personal injury, loss of or
damage to property, and economic loss.11
Through these conventions the world has attempted to put a face and a name to nuclear
damage. The difficulties in creating liability and compensation regimes are abundant even in
domestic law, yet the world—with its multitude of representatives, languages, religions, and political
parties—has managed to piecemeal together a liability and competition regime applicable to the
most volatile of materials. This regime, paired with the IAEA safeguards of the NPT, has guided the
international nuclear community towards a world that has reigned in the power of the atom and—
more importantly—has resisted its use in war, with the exception of its inception.
However, humanity is still humanity. While one may believe in the best intentions of the
human populace, sometimes tensions build, ideologies clash, and buttons are pressed. Humanity has
created weapons and technology capable of eliminating itself. This section has sung the praises of
the international community’s desire to a safe, peaceful nuclear world. But, for purposes of scholarly
debate, what if the world was not always so pristine and idyllic? What if, for the first time since 1945,
an actor—be it state or terrorist group—were to unleash the atom once more?
10 Convention on Supplementary Compensation for Nuclear Damage art. II, September 12, 1997,
https://www.iaea.org/publications/documents/treaties/convention-supplementary-compensation-nuclear-damage
[hereinafter CSC].
11 Id., at art. I.

6. Cook 5
II. Nuclear Attack, its Aftermath, and Changes for the Future
War. War never changes.
- Fallout 412
A. Terrorism
The next nuclear attack might not be from a state actor, but instead from a terrorist
organization. The world today is fraught with terroristic peril; ISIS, Al Qaeda, and other terrorist
groups have declared their own manifestos against the Western World and its allies. Through the
International Convention for the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism
Convention, or NTC), over one hundred states have joined together and have defined nuclear
terrorism to include not only the unlawful and intentional possession of nuclear material to harm or
kill both people or the environment, but also the threat of using nuclear material do so.13
Nuclear
facilities are also covered under the NTC, as are accomplices to nuclear terrorism.14
All of these treaties and conventions are legal mechanisms with which to prevent and cope
with a nuclear attack. But now, for argument’s sake, what if there actually was an attack? Let the
stage be set: a metropolitan area in one of the Western Powers, the hustling and bustling of city life
whirs around with its cyclical and expected sights and sounds. Unbeknownst to the surrounding
citizens, a group of sinister characters plot in the shadows, armed with a nuclear device of one
design or another. After reading their terrorist manifesto aloud to one another and swearing to
whichever cause, deity, or creed applicable, one of the villains grasps the detonator in his/her hand
and pushes the button. In a blinding flash of light thousands of lives are vaporized and billions of
dollars of damage is wreaked upon the unsuspecting city. As survivors crawl out through the fallout
12 Fallout 4 (Bethesda Softworks 2015)
13 International Convention for the Suppression of Acts of Nuclear Terrorism art. 2, September 14, 2005,
http://www.un.org/en/sc/ctc/docs/conventions/Conv13.pdf [hereinafter NTC].
14 Id.

7. Cook 6
and troops are scrambled, as vigils are held and social media users change their profile pictures to
symbolic flags, the international community—the powers behind all of the aforementioned
treaties—are faced with one question: what now?
The first step that the international community would most likely take is to figure out where
the terrorist organization had acquired the nuclear material in the first place. It is here that
conjecture is the best way to analyze the subject. There are obvious incentives in a case like this for a
country responsible for the nuclear material to hide its involvement. This is where the safeguards
required by the NPT come to center stage. Each country negotiates its own safeguards agreement
with the IAEA, but common among these agreements are provisions that provide for the
accounting for and taking stock of existing nuclear materials.15
Taking stock of the nuclear materials is important to keep a state accountable for what it has.
However, it is difficult to find information pertaining to exactly how the IAEA conducts its
examination of the nuclear materials. It is not unreasonable to assume, however, that if the IAEA is
taking stock of nuclear materials, then there are records of what each nation party to the NPT has in
its nuclear stockpiles, be it peaceful or weaponized. It is the minutiae of these records that could
prove crucial in establishing the source of the nuclear material in a terrorist attack.
Not all nuclear materials are the same; there are different isotopes of different elements in
different containers from different countries enriched by different procedures. These differences, if
recorded, could help the scientific community track down the exact type of material used in the
attack. If the IAEA has this information on hand, tracking the material to its source would be a
15 IAEA, The Structure and Contents of Agreements Between the Agency and States Required in Connection with the Treaty on the Non-
Proliferation of Nuclear Weapons, at 3 (June 1974).

8. Cook 7
simple process of working backwards from the blast to the stockpiles that contain the exact element
used, with the exact amount used, with the exact isotope used, and so forth.
The IAEA safeguards call for a physical inventory, but leaves a majority of the inspections
up to the individual state’s own system of inspections.16
Even if the state is honest and discloses
every single detail about its nuclear program, this does not seem to have the accuracy that will be
needed to track down the nuclear material used in the attack. While it may simply be skepticism, a
series of inspections by a third party that is in one way limited to a form of “honor system” by the
state being inspected does not have the credibility that a more powerful third party inspection
system would have. This is because there are too many incentives to hide details or claim that certain
areas are hands-off; a nation may be able to claim national security reasons or, frankly, a state may
lie. While the IAEA does insist that the state’s own system follow guidelines listed by the IAEA,17
the world’s nuclear stockpiles could stand to have a new system in place.
Now that the problems with the IAEA safeguards have been exposed, a way to fix these
problems is called for. This could come in the form of a new treaty, a new treaty that will be
hereinafter called the Nuclear Response Treaty (NRT). To start off the NRT, the IAEA should
control the inspections completely. If the world cannot agree to the IAEA’s standards, then another
third party should be created to take stock of the nuclear stockpiles kept by each state that is party to
the NPT. Secondly, each state should be required to report the exact isotopes in each and every
nuclear material it has control of, will have control of, or had control of, subject to review and
verification by the third party. The NRT would be a stronger agreement than the NPT and have
16 Id. at 9-10.
17 Id.

9. Cook 8
stricter guidelines than the IAEA safeguards; states would be required to be accountable for not only
what they have, but materials they could obtain in the future and materials that they had in the past.
A treaty, like any law, has no “bite” unless there is a provision that describes a penalty for a
violation. In a case like this, where a state has not reported its stockpile in good faith, has obstructed
the third party, or has neglected to provide exact data, the ramifications should be severe. Too often
could a state claim national security reasons and protest intrusion by the international committee.
But, if the world is to remain safe and wishes for the incentives of allowing nuclear terrorism to
thrive at a minimum, states should be wary of violations of international law. The CPPNM calls for
strict penalties on individuals who violate the treaty’s rules,18
as does the NTC.19
The new NRT
should call for strict penalties on the nations themselves; if a collective world wishes to remain
peaceful in nuclear pursuits, then states participating should be willing to sacrifice anything to save
everything.
One could go to the extreme and require all states party to this new treaty to forfeit their
entire nuclear arsenal in the event of a major, unreasonable infraction of the treaty. This would be
insanely difficult to get any major nation to sign, and the main nuclear powers would most likely
scoff at the idea. However, inserting the words “major, unreasonable infraction” may give those
powers pause before rejection. What exactly is unreasonable, or major? Each state could interpret
those words in their own way. Yes, there would be conflict down the road, but some may be willing
to pay that price in order to prevent a nuclear attack, or at the very minimum, prevent a rival state
from allowing nuclear material into the arms of an enemy terrorist organization.
18 CPPNM, supra note 5, at art. 7.
19 NTC, supra note 13, at art. 7.

10. Cook 9
Another route would be economic sanctions—the fallback to many an international crisis
arbitration coalition. On the other hand, the NRT could impose a probation from participating in
UN decisions for a time period designated by the representatives of the treaty; if a nation does not
wish to participate in the pursuit of a peaceful nuclear world, then that nation has no place in a
United Nations’ peaceful decision process.
The aforementioned penalty clauses would draw criticism, as every clause in every treaty
negotiation does. However, the new treaty just might gain traction when compared to the NPT. In
the NPT, a majority of the world gathered together and declared a determination to insure peaceful,
nuclear cohabitation. The main nuclear powers voluntarily gave up part of their own sovereignty in
nuclear situations in order to further the atmosphere of nuclear peace. These powers may once more
give up some of their own independence in order to keep the world at nuclear peace.
After the origin state of the nuclear material is identified, be it from current IAEA
safeguards or from the NRT’s stockpile minutiae records, the next step would be to examine if the
state itself obeyed treaties that it is already party to. One of these treaties is the CPPNM. Here, if the
state were a party to the CPPNM, the obvious first question would be whether the state had known
there was material missing. If the state knew of missing material, it could be argued that the state had
a duty to report the missing material. If the material was in international or domestic transportation,
the CPPNM would require this duty.20
The CPPNM, while primarily applying to transport, creates a
standard for how states should operate in the case of missing nuclear materials.
For instance, if country X borders country Y and has nuclear materials stolen, in the interests
of local politics and standing international agreements, there should be a duty for country X to
notify country Y in the case where nuclear materials are found in country Y or an attack is planned
20 CPPNM, supra note 5, at art. 5.

11. Cook 10
for country Y. Similarly, in the spirit of cooperation, country Y should be required to lend aid to
country X in finding the material, due to the risk that either country could be attacked with the
material.
The above scenario, while not covered by the CPPNM, would be covered under the Nuclear
Response Treaty. The new clause would call for a duty to report stolen or missing materials regardless
of where or how the materials went missing. This includes loss of materials from a nuclear facility, military
base, and any other area that materials are stockpiled. If the fear of a nuclear-armed terrorist
organization is a real, tangible threat that the world would like to avoid at all costs, then there should
be a formal, direct line of communication between nuclear powers at all times for all reasons.
Countries may communicate regardless of treaties, but to assume that communication will happen is
not enough; a duty must be created so that the world can remain on the same proverbial page as to
the threat of nuclear attack.
If nuclear materials were stolen and the origin state had withheld that information, then
liability becomes an issue. The Vienna Convention and the CSC primarily apply to installations, i.e.
nuclear power plants and other facilities.21
If there were to be a terrorist attack with stolen nuclear
materials, surely the perpetrators of the attack would be prosecuted and held responsible for the
actual attack having taken place, especially according to the NTC22
and CPPNM.23
However, at what
point does the world assess liability to the origin state? But for the origin state’s supply—be it
legitimate or stolen—the terrorist organization would not have nuclear materials. There is a
noticeable gap between state and individual actor in the current liability regime.
21 Vienna Convention, supra note 8, at 1.
22 NTC, supra note 13, at art. 7.
23 CPPNM, supra note 5, at art. 7.

12. Cook 11
The new NRT would close this gap. If the world has already agreed to an absolute liability
regime that holds operators of facilities accountable for nuclear mishaps,24
then the logical leap to
holding a state accountable for its own missing nuclear materials, within reason, is not a hard leap to
make. The NRT would keep the absolute liability standard because the stakes of violation are so
high and the loss of life and property at risk is so great. This new treaty would simply apply the
current liability regime to cover states themselves, rather than the individual facility operators in
order to cover attacks that were brought about by a negligent state or a state that was not able to
protect its stockpile adequately.
Had the origin state complied with the CPPNM’s (or the NRT’s) duty to notify, the liability
argument becomes much different. In one regard, once the origin state has notified the international
community about the missing nuclear materials, it has mitigated its damages in a sense. The world is
now bound—through treaty, common courtesy and practice—to render aid in searching for the lost
materials. At the very least, every state that would be susceptible to attack would be on high alert
and on constant guard. If an attack occurred after all of the notifications had been timely sent out,
then the liability of the origin state is significantly weakened because it had fulfilled its duties.
However, the liability in the current regime is absolute.25
The origin state may still be held
liable, regardless of its actions to mitigate any damages. The absolute liability standard incentivizes
extreme caution with the nuclear stockpiles. It could further be argued, though, that the materials
would not have been stolen if the state had kept adequate safeguards against theft. This ties in the
IAEA (or proposed third party) safeguards, further establishing liability on the origin state,
regardless of its notification duty. That may seem to incentivize the origin state away from
24 Vienna Convention, supra note 8, at 1.
25 Id.

13. Cook 12
notification, since liability would come back to the origin state regardless, but the mitigation would
most likely help the origin state in regards to compensation post-attack.
Finally, once liability has been established, compensation must be doled out to the victims of
the attack, both state and citizen. The CSC provides guidelines for compensating victims of nuclear
damage in regards to facilities, but does leave some interpretation open as to the term “nuclear
incident,” defining it as “any occurrence or series of occurrences having the same origin which
causes nuclear damage,” yet limiting the application of the term to preventative measures.26
Once
more, a gap between nuclear facilities and a nuclear attack disrupts the path to complete legal
closure.
The Nuclear Response Treaty would expand the compensation regime—modeled after the
current regime, and an extension of the already expanded liability regime—to cover compensation
for attacks, both from terrorists and from nations. After many of history’s wars, the victors demand
reparations from the defeated. Some reparations are deserved and balanced, although there are a few
outliers in the annals of history—some argue that the reparations forced onto Germany after World
War I facilitated the birth of Nazi Germany; a topic for another paper. But if any scenario would call
for reparations, the aftermath of a nuclear attack is definitely the scenario to imagine.
Assuming that the world has agreed to the NRT, the nuclear materials have been traced to
the origin state, the origin state’s liability has been established, and war was avoided between actual
governments, compensation would have to be paid out. This should be a proportional system to
avoid crippling a nation that may have only played the part of the supplier, albeit unwittingly. So far,
every aspect of the NRT encompasses ideals that will, in reality, be a hard sell to the world powers,
26 CSC, supra note 10, at art. I.

14. Cook 13
but are necessary to incentivize against in the facilitation of terrorist nuclear attacks, be they
accidental or purposeful.
The proportionality in the NRT would be the softened blow that countries would most
likely look for. The proportional compensation clause would appease the many smaller countries in
the world so that, if there happened to be an incident, they would not lose the entirety of their GDP.
Proportionality would also aid the major powers; proportionality would apply not only to
compensation amount, but also to the amount of material used to determine the compensation. If
country X has two thousand grams of uranium and allows two hundred grams to be stolen, it would
pay its reparations based on that proportion. While country Y has five hundred grams, and allows
two hundred grams to be stolen, but is a smaller country, the proportionality would equalize the
compensation for country Y. The concept would need to be argued over, changed, debated, and
tested by delegates, but the changes would fill in any compensation gaps, incentivize even more
nuclear security, and provide closure after a terrorist attack.
The proposed Nuclear Response Treaty has shown itself to fill in missing gaps between
current international law and possible international law problems if a terrorist attack was to occur.
Yet this has all been about terrorist attacks; what of the many nations that hold nuclear weapons?
What if tensions build up and common sense builds down? What if there is a nuclear attack by a
nation?

15. Cook 14
B. Nuclear War
The world currently operates in a contradictory state of violent peace. Deterrence has kept
nuclear weapons in their storage bays for decades due to the fear that any nuclear attack would be
met with entire nuclear arsenals; retribution would be swift, merciless, and the end of civilization as
humanity knows it. The Cold War birthed a society that lived upon the brink of total atomic
annihilation; the fear of a nuclear arsenal falling upon one’s head is no longer the forethought of
society’s mind due to different political climates and various disarmament treaties.
Generally, the use of nuclear weapons in a modern war is contrary to international law—
from arms control law to humanitarian law.27
Many arms control treaties have been signed, ratified,
and enacted, all limiting nuclear weapons in one way or another. The International Court of Justice
(ICJ) acknowledged as much, and conjectured that one day an arms control treaty will indeed outlaw
the use of nuclear weapons in war.28
Until then, however, even though there seems to be a
consensus that limiting nuclear arms is generally favorable, there have been no treaties to outlaw the
weapons outright.29
As for humanitarian law, the ICJ discussed that nuclear weapons, by their design, clash with
existing humanitarian principles because, inter alia, the weapons are indiscriminate and can cause
significant suffering.30
Even though the ICJ did not reach a solid holding regarding the legality of
nuclear weapons in war, the Court did make an allowance, albeit a slim allowance by not making an
27Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 94 (July 8).
28 Id. at 97.
29 Id.
30 Id. at 98.

16. Cook 15
ultimate decision, for self-defense.31
In addition, the Court unanimously held that the threat of force
with nuclear weapons is unlawful in itself.32
Since there is no concrete, international consensus on the use of nuclear weapons in war, the
Nuclear Response Treaty is once more called upon. This is one gap in international law that should
not be ignored. Civilization may have survived as long as it has due to an unspoken bond between
nations to not launch Armageddon atomics at one another, and the NPT may have created a
disarmament-oriented international mindset, but this is simply not binding enough. The world
should not rely on the “honor system” or on pure fear itself to police possible nuclear war.
Judge Weeramantry of the ICJ, in his dissent, claimed that nuclear weapons were—without
any express language—illegal by their very nature.33
Judge Weeramantry asserted that there was no
hesitation in regards to the legality of nuclear weapons in war,
when one had regard to their known effects. Among these principles
were the prohibition against causing unnecessary suffering, the
principle of proportionality, the principle of discrimination between
combatants and civilians, the principle against causing damage to
neutral States, the prohibition against causing serious and lasting
damage to the environment, the prohibition against genocide, and the
basic principles of human rights law.34
It can be argued that the international community has operated on this notion that nuclear weapons
are inherently illegal for decades. Nuclear weapons have become a taboo subject in international law
in regards to outlawing them; it is as if the world has an unspoken agreement against discussing such
a subject.
31 Id. at 94.
32 Id.
33 Id. at 102-103.
34 Id. at 103.

17. Cook 16
In reality, if one nation were to be the first to use nuclear weapons in conflict—assuming, of
course, that no nuclear retaliation occurred or, if it did, civilization survived the fallout—the entire
world would turn on that nation without a treaty needed for motivation. However, some may be
willing to take that chance; extremist nations inhabit this same earth as relatively sane nations.
Because of this, what is needed is a true incentive to avoid being the nation to strike twelve on the
doomsday clock.
The NRT would contain a retaliation clause. This clause is perhaps the most essential clause
in the entire treaty. The clause would require every party to the treaty to join in arms, to the best of
their abilities, against any nation that uses nuclear weapons in an unprovoked, unreasonable, or
unjustifiable situation. Without this clause, there will be no consensus on the legality of nuclear
weapons in war. With a single clause, any nation that launches a preemptive strike, any nation that
unloads their entire arsenal in a minor conflict, and any nation that utilizes a nuclear weapon in a
scenario where—under the direst circumstances—there is no justifiable reason to do so, would find
itself at arms with every single power party to the treaty.
Minor countries would flock to this treaty; the major nations would be held accountable
and—no matter how strong—cannot withstand the weight of the world. World powers would fall in
love with the NRT; if their greatest rivals were to attack with nuclear weapons, the world would
become an ally. It would codify the demonization of the next nuclear attack for the world to see;
negotiations would cease to have the fear of nuclear arsenals hanging on the strings of delicately
selected words. Disarmament would thrive now that the use of nuclear weapons would create a duty
for the world to join against the antagonist.
And yet, like every treaty, there would be resistance. Why did the ICJ not hold unanimously
that nuclear arms are illegal, unlawful, and abhorrent? There is much controversy over such a

18. Cook 17
decision, as the ICJ even said itself.35
But, examine the terms of this Retaliation Clause: unprovoked,
unreasonable, and unjustifiable use of nuclear weapons would trigger the world response. What is
unprovoked? Any nation could argue provocation; it has happened in the past and will happen
again. The American Civil War, for instance, started for different reasons depending on whom you
ask—some Southerners called it “an act of Union aggression,” while others blame Confederate
antagonizing.
What is unreasonable? Some nations have weapons that range from destroying a few city
blocks to entire metropolitan areas. Would it be reasonable to use a fifty-kiloton bomb in a guerilla-
war-like scenario? Would it be reasonable to use a tactical nuclear bomb to eliminate small pockets
of resistance in isolated areas? In a similar vein, what is unjustifiable? The ICJ itself, in refusing to
hold self-defense as an illegitimate reason for the use of nuclear arms, left open the possibility for a
nation to use nuclear weapons in a scenario “in which the very survival of a State would be at
stake.”36
Conversely, Judge Koroma, in his dissent, found the self-defense notion abhorrent.37
Judge
Koroma believed that the ICJ was too concerned with the “survival of the State.”38
He believed that
international law had already clearly outlawed the use of nuclear weapons for similar reasons as
Judge Weeramantry.39
In addition to the aforementioned humanitarian law ramifications of the post-
nuclear effects, Judge Koroma highlighted the fact that the use of nuclear weapons would violate
both Geneva Conventions and are illegal, even without a clearly defined decision, law, or treaty
against their use.40
35 Id. at 98.
36 Id. at 94
37 Id. at 103-104.
38 Id. at 103.
39 Id.
40 Id.

19. Cook 18
The NRT, at first glance, may look as if it is another arbitrary agreement that would create
more questions than answers. However, international law has been operating on nothing but
conjecture for over half a century. These questions do not arise as ways to show how the NRT
would not be capable, but instead to show that almost any country would be doing justice to
international law by embracing the NRT. The goal of the NRT would be to avoid nuclear war—
either terroristic or nationalistic—at all costs. Any person, any state, any community can rationalize
anything that it so chooses; but if the world finally sits down, talks over, and agrees on codified fear
of nuclear reprisal and mutual disgust for nuclear war, then the actual threat of nuclear war will, for
the most part, fade away.
The NRT could also disincentivize nuclear attacks by codifying the US’s strategy of indirect
proportionality as a form of deterrence. Similar to the aforementioned Retaliation Clause, the
Proportionality Clause would require action by every able member of the treaty in the event of an
unreasonable, unjustifiable, unprovoked attack, but this clause would call for an onslaught of might,
consisting of combined strategic arms and—in dire circumstances—nuclear arsenals. This is not a
favored result; it would incentivize the use of nuclear weapons in a counterattack. However, this
would simply codify the theory behind Mutually Assured Destruction. The Proportionality Clause
would be more “bark” to the treaty’s “bite,” i.e. there would be no conjecture and no “what-if”
scenarios. The world would know for certain what would occur if a nation were to launch a nuclear
attack.
However, current international law could still play a vital role in the aftermath of a nuclear
attack. Once more, assuming that the attack was singular, society still stands and the launching
nation loses whatever war it was fighting, the thought process would be similar to a terrorist attack,
with the exception that this time the world clearly knows who is responsible for the attack. Liability

20. Cook 19
would clearly be on the launching nation. Since liability is absolute41
, the launching nation would
have to pay compensation to any nation damaged after the attack, since nuclear fallout can carry
across borders and affect the environment and infrastructure of a nation.42
The international community would once more have to draw upon the CPPNM if the world
is to have a duty for states to come to the aid of a victim of a nuclear attack. If a nation is targeted
by another nation with a nuclear attack, the targeted nation will most likely have a majority of its
infrastructure or governmental structure obliterated when the atom splits. Providing that the world
does not end, there should be a duty in international law for countries to send aid to the ravaged
country. Regardless of fault, the citizens of a nation are usually innocent in the grand, political
scheme. These citizens are the victims that the international community—with its humanitarian laws
and non-proliferation treaties—has in mind when imagining the horrors of nuclear war. Much like
how the CPPNM requires countries to give aid to nations that request aid when nuclear supplies go
missing,43
there should be a duty for countries who are able to give aid to the poor, helpless victims
of nuclear war. This should be done, not as a political maneuver, nor as a bargaining tool, but as a
bare minimum valuing of human life.
The world has prepared itself for nuclear disasters and has given itself a chance to disarm the
various stockpiles scattered around the globe. However, international law has avoided direct
discussions over the use of nuclear weapons, and we are forced to wonder and hypothesize about
what may happen come midnight hour on doomsday. Nations have signed treaties, enacted laws,
and requested advisory opinions from the International Court of Justice. Even if there is no
conclusive current law, no concrete treaty to point to, no binding ICJ decision, international law has
41 Vienna Convention, supra note 8, at 1.
42 CSC, supra note 10, at art. I.
43 CPPNM, supra note 5, at art. 5.

21. Cook 20
made its mark on the legality of nuclear weapons and the mechanisms with which to cope with their
use.

22. Cook 21
III. Conclusion
The world has remained at relative nuclear peace for seventy years. It may remain so for
longer with the current international law approach to nuclear weapons, i.e. the disarmament and
non-proliferation movements that have swept the international community over the past few
decades. But if the world wishes to live at complete peace, or something close to complete peace,
then there needs to be a greater treaty. A treaty that will be hard fought, reluctant, and yet the closest
to truly comprehensive that the world has ever seen. Incentives must be created, peace preserved,
liability defined, illegality codified, and, inter alia, a collective will to survive must thrive.
Some countries might go kicking and screaming into this new era. It might even take years
or decades. But all the world needs is a few countries to rise up and declare for a peaceful world. If
the NPT managed to get almost every country on Earth to agree to terms, then there is hope for a
future treaty as ambitious as the NRT. The horizon is bright, not with the flashes of atomic fireballs,
but with the glimmer of hope and cohabitation.