Prior U.S. presidential administrations have developed and adhered to the nuclear weapons policy of nuclear deterrence. This policy was largely conditioned by the Cold War and the fact that the U.S. Cold War adversary was a major threat to U.S. security because of its nuclear capability. The policy of nuclear deterrence worked on the principle of mutually assured destruction. It appears to have had the effect of discouraging recourse to nuclear weapons as instruments of war. It has also been generally perceived as a position that has an uneasy relationship with conventional international law. Even before entering office, President Obama suggested the need for a new perspective in nuclear weapons control: regulation and possible abolition.1 It was therefore with much anticipation that public opinion awaited the Obama Nuclear Posture Review (NPR). However, the report did not quite measure up to the public’s expectations. For example, the Administration reaffirmed NATO obligations that require U.S. adherence to the policy of nuclear deterrence, which does not represent a significant change from past policy. Nevertheless, strategic developments in treaty commitments with both NATO allies and former Cold War opponents imply a closer approximation with international law standards regarding the threat and use of nuclear weapons. Therefore, while current U.S. policy generates an expectation regarding the threat or use and abolition of nuclear weapons, it still retains an element of nuclear deterrence in its strategic posture, which, as indicated, seems to be in tension with international law. U.S. security strategy straddles a delicate balance between unilateral action and action consistent with promoting and defending international law in the national interest.
Winston P. Nagan & Erin K. Slemmens, Developing U.S. Nuclear Weapons Policy and International Law: The Approach of the Obama Administration, 19 Tulane J. Int'l & Comp. Law 1 (2010), available at http://scholarship.law.ufl.edu/facultypub/259