Nuclear Arms Control: Coming Back from Oblivion, Again

SYMPOSIUM

Nuclear Arms Control: Coming Back from

Oblivion, Again

Dakota S. Rudesill*

NTRODUCTION

As tensions between the United States and Russian Federation have spiraled in

recent years, the outlook for the bilateral nuclear arms control regime has become

increasingly grim. Comparisons to the early 1980s Cold War are common. Now,

as then, Washington and Moscow are geopolitical adversaries. A key arms con-

trol agreement has been abandoned. Nuclear modernization accelerates. Old nu-

clear hands warn that the potential for nuclear war is rising. Amid growing

unease, practitioners and commenters debate nuclear policy priorities, how the

arms control process might resume, and how best to reduce nuclear risks.

This essay analyzes the comparison of our present moment of nuclear destabi-

lization with the Cold War’s frigid

and perilous depths in the early 1980s. It

argues that the analogy is not perfect, but it is instructive. The Cold War teaches

us that nuclear arms racing is hazardous and that nuclear arms control can come

back from oblivion. By focusing on the right priorities – strategic stability in

particular – and generating ideas now, a pragmatic slate of actionable stability-

enhancing proposals can be ready when the geopolitical currents change and

prospects for nuclear arms control recover.

I. T

HE COLD WAR COMPARISON

The nuclear age was nearly four decades old when “The Day After” aired in

November 1983. The public was accustomed to hearing about nuclear dangers,

but the TV movie had a powerful impact thanks to its major-network billing and

depiction of average people dying in a mid-American town.

See Dawn Stover, Facing Nuclear Reality:

35 Years After “The Day After”, B

ULL. ATOMIC

SCIENTISTS (2018), https://perma.cc/EC67-E8RH.

Thirty-ﬁve years

later came another unsettling nuclear “day after:” rising concern about nuclear

* Assistant Professor, Moritz College of Law, and Afﬁliated Faculty, Mershon Center for

International Security Studies, The Ohio State University. This essay is based on the author’s remarks at

the J. Nat’l Security L. & Pol’y 2019 symposium, “The Continuing Threat of Nuclear Weapons,” held at

the Georgetown University Law Center. I thank the conference’s organizers and participants for a

stimulating discussion, and especially co-panelists Bonnie Jenkins, Michael Krepon, and Adam

Scheinman. I thank the Journal’s able editors for their patience and good work. For research assistance I

thank Krystina Garabis, Brandon Miller, Erin Reinke, and Michael Walsh. I am responsible for all

content and any errors. The views expressed here are mine and do not imply endorsement by the Ofﬁce

Rudesill.

429

arms racing that followed the Trump Administration’s October 2018 decision to

withdraw from the landmark 1987 Intermediate-Range Nuclear Forces (INF)

Treaty, after years of Russian violations.

See Treaty on the Elimination of Intermediate-Range and Shorter-Range Missiles, U.S.-USSR,

Dec. 8, 1987, 100 U.S.T. 1 [hereinafter INF Treaty]; Steven Pifer, The Trump Administration is

Preparing a Major Mistake on the INF Treaty, B

ROOKINGS (Oct. 19, 2018), https://perma.cc/LLG7-

JH6N

The historical echoes continued as dis-

cussion of non-extension of the last remaining bilateral nuclear arms treaty, the

2010 New Strategic Arms Reduction Treaty (New START) accord on strategic

(long-range) nuclear forces, quickly followed the INF withdrawal announcement.

These events recalled the collapse of negotiations on the ﬁrst START accord in

December 1983, mere weeks after the TV movie aired.

See Treaty on Measures for the Further Reduction and Limitation of Strategic Offensive Arms,

U.S.-Russ., Apr. 8, 2010, T.I.A.S. No. 11-205 [hereinafter New START]; William Drozdiak, Soviets

Halt Strategic Arms Talks, W

ASH. POST (Dec. 9, 1983), https://perma.cc/UD7P-7TWF.

Some experts warn that the risk of employment of nuclear weapons may

now be greater than in 1983, perhaps higher than at any moment since the

Cuban Missile Crisis of 1962.

But is the Cold War really back?

See, e.g.,

Brian D’Haeseleer, Did Barack Obama, not Donald Trump, launch the new cold war?,

ASH. POST (Sept. 18, 2019, 6:00 AM), https://perma.cc/P7ZU-5XJU (applying a Cold War analogy);

Michael E. O’Hanlon & Sean Zeigler, No, We Aren’t on the Brink of a New Cold War with Russia and

China, B

ROOKINGS (July 13, 2019), https://perma.cc/5SCC-ZF9Y (criticizing a Cold War analogy).

Does the

comparison to the early 1980s work? Comparing the two moments of rising nu-

clear risks demonstrates that there is enough that is similar and different that

Washington and Moscow should adopt an agenda that is at once old and new.

The two top nuclear powers should focus on strategic stability, extend New

START, and prepare for arms control’s eventual resumption by generating

workable ideas now.

A. Similarities

Recent months saw the thirtieth anniversary of

the Berlin Wall’s demise. Yet it

has been hard not to regard our moment with a sense of tragedy and regret about

what could have been. A corner has been turned from the “post-Cold War world.”

In recent years, the list of ways in which our time looks like the early 1980s Cold

War has started to get long. We can organize the similarities under headings of

geopolitics, nuclear force modernization and doctrine, and arms control.

1. Geopolitics

In the preface to the Trump Administration’s 2018 Nuclear Posture Review

(NPR), then-Defense Secretary James Mattis observed that Moscow has made a

“decided return to Great Power competition.”

See U.S. D

OD, NUCLEAR POSTURE REVIEW 1 (2018), https://perma.cc/3HT3-UQZK [hereinafter

2018 NPR].

This characterization of the

4. See, e.g., Ernest J. Moniz & Sam Nunn, The Return of Doomsday: The New Nuclear Arms Race –

and How Washington and Moscow Can Stop It, 98 F

OREIGN AFF., Sept.–Oct. 2019 (noting that the risk

of nuclear employment is the highest since the Cuban Missile Crisis in 1962).

430 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 10:429

international security environment is contested.

See, e.g., Michael J. Mazarr, This is Not a Great-Power Competition, FOREIGN AFF. (May 29,

2019), https://perma.cc/A7FB-7F5H

Even so, the undeniable deterio-

ration in relations between Russia and the U.S.-led North Atlantic Treaty

Organization (NATO) was long in coming and signposted by Kremlin use of

force. In the same way that the Soviet invasion of its neighbor Afghanistan in

1979 marked the end of the intra-Cold War period of lower tensions known as

tente,

Russia’s invasions of neighboring Georgia in 2008 and Ukraine in 2014

(to include annexation of Crimea) meant the acrimonious end of hope during

the George W. Bush and Obama Administrations, respectively, for friendlier

relations.

In the wake of

tensions with Russia during the 1999 Kosovo War and rising Washington-Moscow

acrimony, the George W. Bush Administration attempted a reset of its own. The “New Relationship”

was reﬂected in a 2002 strategic arms treaty. See Strategic Offensive Reductions Treaty, U.S.-Russ.,

May 24, 2002, S. T

REATY DOC. No. 107-8 (2002). Called the Moscow Treaty or SORT, this short

agreement provided that on Dec. 31, 2012, each state would declare that its operationally deployed

strategic warheads numbered 1,700 to 2,200. Id. The agreement would then expire. The SORT kept arms

control alive but allowed the sides to conﬁgure their forces as they pleased and provided no inspection

regime. Washington-Moscow relations worsened quickly after SORT was concluded. Contributing

factors included disagreements about the 2003 U.S. invasion of Iraq, continued expansion of NATO into

the former Soviet empire, and Russia’s turn toward authoritarianism. The New Relationship’s failure

was laid bare when Russia conducted cyber attacks on Estonia in 2007 and invaded Georgia in 2008. For

discussion, see Peter Baker, The Seduction of George W. Bush, F

OREIGN POL’Y (Nov. 6, 2013, 12:49

AM), https://perma.cc/H34S-MG7X. The Obama Administration’s efforts at a post-Georgia war “reset”

yielded the 2010 New START nuclear arms treaty but little other Russian reciprocation. See New

START, supra note 3; Nini Arshakuni, Angelina Flood & Natasha Yeﬁmova-Trilling, Why the ‘Reset’

Didn’t Last, R

USS. MATTERS (Mar. 8, 2019), https://perma.cc/U85P-UDVT (commenting on the impact

of Russia’s invasion of Ukraine on bilateral relations).

As before, the Kremlin has since been engaged in a protracted low-

intensity conﬂict against U.S.-aided local forces.

The U.S. aid to

the Mujahideen ﬁghters in Afghanistan was covert, while U.S. aid to Ukraine has

so far been overt on the public record. See G

EORGE CRILE III, CHARLIE WILSON’S WAR: THE

EXTRAORDINARY STORY OF THE LARGEST COVERT OPERATION IN HISTORY 78, 214–15, 261–63 (2003)

(decribing the provision of covert aid to Afghan rebels); C

ORY WELT, CONG. RESEARCH SERV., R45008,

KRAINE: BACKGROUND, CONFLICT WITH RUSSIA, AND U.S. POLICY 29-32 (Sept. 19, 2019), https://

perma.cc/2DL3-9H5K (summarizing U.S. aid to Ukraine).

As before, there has been

potential for escalation and direct conﬂict between the armed forces of Washington

and Moscow, and concern that the Kremlin may turn its forces next to an attack

on NATO states.

Russia has espoused a

willingness to use force to protect Russians and Russian-speakers in

neighboring states, which echoes the Brezhnev Doctrine: the Soviet policy of willingness to use force to

prevent Soviet satellites from drifting out of the Kremlin’s orbit. The Doctrine was consistent with the

Soviet invasions of Hungary, Czechoslovakia, and Afghanistan. See G

ARTHOFF, supra note 8, at 755,

1037-38. The current Russian policy is more worrisome because NATO expansion to include former

Soviet republics in the Baltics has brought many Russians and Russian speakers inside NATO. The

Russian populations of the Baltic countries are approximately: Estonia 25 percent, Latvia 25 percent,

and Lithuania 5.8 percent. See The World Factbook, U.S. C

ENTRAL INTELLIGENCE AGENCY, https://

www.cia.gov/library/publications/resources/the-world-factbook/ (data available via use of the names of

the Baltic states as search terms). Russian military operations against any NATO state would trigger the

In the Middle East, the two powers have backed warring

8. See R

AYMOND L. GARTHOFF, DE

TENTE AND CONFRONTATION: AMERICAN-SOVIET RELATIONS

FROM NIXON TO REAGAN 1130, 1156-57 (rev. ed. 1994) (discussing the role of the Soviet invasion of

Afghanistan in the demise of De

tente).

10.

11.

2019] COMING BACK FROM OBLIVION, AGAIN 431

Alliance’s Article V commitment obligating every member to defend all others. See North Atlantic

Treaty art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243.

factions in Syria’s bloody civil war – and unlike in most of the Cold War’s

proxy wars, Washington and Moscow have overtly used force themselves.

See, e.g., Barbara Starr & Ryan Browne, US Conducts Airstrike on Weapons Storage Site as

Troops Pull Out of Syria, CNN (Oct. 16, 2019, 7:29 PM), https://perma.cc/LC34-PJD2 (example

coverage of overt U.S. military action); Evan Hill & Christiaan Triebert, 12 Hours. 4 Syrian Hospitals

Bombed. One Culprit: Russia., N.Y. T

IMES (Oct. 13, 2019), https://perma.cc/63DV-UZNM (example

coverage of overt Russian military action in Syria, which has raised particular concern about knowing or

reckless disregard for the law of armed conﬂict).

Meanwhile, the spy war – the confrontation between Kremlin and Western

intelligence services – has rebounded to its former levels of intrigue and lethal-

ity.

The KGB’s successor (the FSB) and its Defense Ministry counterpart

(the GRU) are again top counter-intelligence priorities of the U.S. intelligence

apparatus, and have carried out a campaign of assassinations on NATO soil

in recent years. The Kremlin’s espionage apparatus has revived its “active

measures” efforts to compromise U.S. elections and disrupt U.S. domestic tran-

quility – to potentially unprecedented effect, thanks to the Internet and the

increasingly sensationalistic American political culture.

See R

OBERT D. BLACKWILL & PHILIP H. GORDON, COUNCIL ON FOREIGN RELATIONS SPECIAL

REPORT NO. 80: CONTAINING RUSSIA 3 (Jan. 2018), https://perma.cc/PTC3-MTMA (discussing election

interference as part of the larger geopolitical challenge from Russia); Worldwide Threat Assessment of

the US Intelligence Community Before S. Select Comm. on Intelligence, 116th Cong. 6-9, 13-14 (Jan. 29,

2019) (statement for the record of Daniel R. Coats, Director of Nat’l Intelligence on Russian operations),

https://perma.cc/Q6PB-5WHY (view of U.S. intelligence community); Judy Woodruff, Russia ‘Turned’

Election for Trump, Clapper Believes, PBS.

ORG (May 23, 2018) (former Director of National

Intelligence personally believes that Russian election interference was decisive in close 2016

presidential race).

The Washington-Moscow bilateral geopolitical competition is once again

importantly and disturbingly nuclear. The two nuclear peers still hold the major-

ity of the world’s atomic arsenal. Rehearsal of nuclear combat has resumed a

prominent place in military exercises. We now know that the Soviets nearly mis-

took NATO’s Able Archer 83 exercise – which included nuclear units and

planned participation of national leadership – as cover for a NATO ﬁrst strike.

See Able Archer

83 Sourcebook, N

AT’L SECURITY ARCHIVE, https://nsarchive.gwu.edu/project/

able-archer-83-sourcebook (last visited Nov. 6, 2019) (collecting historical documents and analyses);

see also M

ARC AMBINDER, THE BRINK: PRESIDENT REAGAN AND THE NUCLEAR WAR SCARE OF 1983

(2018) (investigative journalist account of near-war during the Able Archer 83 exercise).

In recent years, NATO has carefully watched major Russian combined-arms

exercises that have rehearsed use of nuclear weapons against member states and

NATO associate Sweden.

See Robin Emmott &

Andrius Sytas, Russia’s Zapad War Games Unnerve the West, R

EUTERS

(Sept. 13, 2017, 9:36 AM), https://perma.cc/NH2U-RHDN; Damien Sharkov, Russia Practiced Nuclear

Strike on Sweden: NATO Report, N

EWSWEEK (Feb. 4, 2016, 3:46 AM), https://perma.cc/9SRK-SH97.

Both nuclear superpowers have revived Cold War-

era training missions that bring their nuclear-capable aircraft and naval vessels

12.

13. See Madeline Roache, Russia Was Linked to 14 Deaths in the U.K., But Britain Looked Away. A

New Book Explores Why, T

IME (Nov. 2, 2019) (journalist investigation of deaths in the U.K. where there

are signs of involvement of Russian security services).

14.

15.

16.

432 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 10:429

close to the other’s territory, waters, and airspace.

See Hans M. Kristensen & Matt Korda, United States Nuclear Forces, 2020, 76 BULL. ATOMIC

SCIENTISTS 46, 50-51 (2020) (U.S. nuclear exercises in 2019 involved bomber operations in the

European theater that the Air Force observes “have not been done since the Cold War ended,” involved

a large ﬂight of B-52H bombers to the eastern Baltic Sea, B-52H ﬂights over Poland and the Arctic near

Russian territory, and (for the ﬁrst time) B-2 stealth bomber operations over the Arctic); Zachary Cohen

& Ryan Browne, US Fighter Jets Intercept Russian Bombers Near Alaska, CNN (Aug. 9, 2019, 5:29

AM), https://perma.cc/GND7-2XXP (reporting that Russian nuclear-capable bombers

ﬂew near U.S.

airspace).

Whereas on Sept. 11, 2001,

both sides cancelled nuclear exercises that were underway, Russian President

Vladimir Putin has indicated that he was willing and ready to order a nuclear alert

during Russia’s 2014 invasion of Ukraine.

See William M. Arkin & Robert

Windrem, Secrets of 9/11: New Details of Chaos, Nukes

Emerge, NBC N

EWS (Sept. 11, 2016, 10:53 AM), https://perma.cc/6G4J-GXZW; Putin Says Russia Was

Ready for Nuclear Confrontation Over Crimea, R

EUTERS (Mar. 15, 2015, 7:59 AM), https://perma.cc/

9HTJ-6HUX

Putin here was reviving nuclear sig-

naling: sending a message of resolve through force posture changes or statements

regarding nuclear arms. The ready precedent was the U.S. nuclear alert during the

1973 Arab-Israeli war, meant to dissuade Kremlin intervention.

Meanwhile,

both Putin and U.S. President Donald Trump have made nuclear saber rattling a

feature of nationalist political rhetoric.

See, e.g., Ray Sanchez, Putin

Boasts Military Might with Animation of Florida Nuke Strike, CNN

(Mar. 2, 2018, 10:57 AM), https://perma.cc/X8S8-3HJF (Putin’s State of the Union remarks tout nuclear

modernization and include video of simulated nuclear attack on the U.S.); Donald Trump

(@realDonaldTrump), T

WITTER (Dec. 22, 2016, 8:50 AM), https://perma.cc/46LP-24YN (“The United

States must greatly strengthen and expand its nuclear capability. . .”); Michael Crowley, Trump’s North

Korea Tweets Shatter Decades-Old Nuclear Taboo, P

OLITICO (Jan. 3, 2018, 7:51 PM), https://perma.cc/

BA5H-6P65 (Trump threatens nuclear use more explicitly than predecessors); Melissa Fares, Trump

‘Arms Race’ Comment Sows More Doubt on Nuclear Policy, R

EUTERS (Dec. 22, 2016, 12:03 PM),

https://perma.cc/WP85-VZLA (Trump reportedly told journalist “Let it be an arms race. We will

outmatch them at every pass and outlast them all.”).

2. Nuclear Forces

The notions that an expensive nuclear arms race must be run or that nuclear

employment can lead to military victory sound

to many ears like Cold War

anachronisms. With echoes of Cold War claims of bomber and missile gaps,

however, this kind of thinking is back. To their credit, Presidents Putin and

Trump at times condemn nuclear weapons and disclaim interest in arms racing,

call for further force reductions, and have indicated interest in a nuclear arms

deal that includes China and perhaps other powers.

See, e.g., Vladimir V.

Putin, President of the Russian Federation, Remarks to Meeting of the

Valdai International Discussion Club, Oct. 27, 2016, https://perma.cc/96Y4-F44Q (condemning nuclear

weapons); Kingston

Reif & Shannon Bugos, Putin Puts Ball in Trump’s Court on New START

Extension, A

RMS CONTROL TODAY (Dec. 20, 2019), https://perma.cc/82RD-E6V9 (Russia open to

Trump’s interest in including China, but Russia may then want to include the U.S-allied Britain and

France).

Then-Secretary Mattis’s tes-

timony to Congress on behalf of new nuclear hardware was decidedly reluctant.

Jeff Daniels, Pentagon Chief

Sees New Nuclear Missile as Bargaining Chip Against Russians,

CNBC (Feb. 6, 2018, 5:09 PM), https://perma.cc/BN5Z-YTYN

17.

18.

19. See W

ALTER ISAACSON, KISSINGER: A BIOGRAPHY 530-34 (1992).

20.

21.

22.

2019] COMING BACK FROM OBLIVION, AGAIN 433

Yet it is clear from both presidential rhetoric and force modernization efforts that

a new arms race is at least nascent.

Driven by the classic arms-building motives of perceived security need, pres-

tige, and domestic politics, both

sides are making massive investments in all three

legs of their respective triads of strategic (long-range) delivery vehicles: bombers,

land-based intercontinental ballistic missiles (ICBMs), and submarine-launched

ballistic missiles (SLBMs) and their submarines. After vast post-Cold War cuts

in the kinds and numbers of warheads and nuclear-capable vehicles, both powers

are disregarding the principle of irreversible reductions and are building old and

new kinds of weapons.

Of special concern in the West have been Russia’s now-

ﬁelded nuclear-capable cruise missile (which violated the INF Treaty’s ban on

missiles with ranges of 300 to 3,400 miles), several other nuclear delivery sys-

tems under development (including an underwater drone and a nuclear-powered

missile), in addition to potential return of tactical (short-range) nuclear weapons

to surface ships and attack submarines and retention of a much larger and more

diverse tactical arsenal than the United States.

See 2018 NPR, supra note 6, at x-xii,

8-10. Questions about Russian tactical nuclear arms and its

surface and attack submarine ﬂeets have persisted for some time. See, e.g., H

ANS M. KRISTENSEN,

EDERATION OF AMERICAN SCIENTISTS SPECIAL REPORT NO. 3: NON-STRATEGIC NUCLEAR WEAPONS 59

n.141 (May 2012), https://perma.cc/Q9G7-U52E (Russian defense minister

in 2006 indicated that some

general purpose submarines at sea were nuclear-armed). Similarly, concern about the overall imbalance

between U.S. and Russian tactical nuclear arsenals has existed for some time. See Dakota S. Rudesill,

Regulating Tactical Nuclear Weapons, 102 G

EO. L.J. 99, 111-12, 143-61 (2013) (analyzing imbalance

and related regulatory efforts).

Russian moves informed the

Trump Administration’s decisions in its 2018 NPR to ﬁeld a low-yield warhead

for Trident SLBMs in the near term, and over the long term pursue a new

nuclear-armed sea-launched cruise missile (SLCM) and a conventional ground-

launched cruise missile (GLCM).

Russia and the United States (and China)

are pursuing maneuverable hypersonic warheads.

For discussion, see

ELLEY M. SAYLER, CONG. RESEARCH SERV., R45811, HYPERSONIC

WEAPONS: BACKGROUND AND ISSUES FOR CONGRESS 9-15 (Sept. 17, 2019), https://perma.cc/DJC8-987L

(all three powers are actively pursuing maneuvering weapons that ﬂy at speeds greater than mach 5 that

are launched from ballistic missiles or ﬂy as air-breathing cruise missiles).

Finally, while the United

States no longer ﬁelds the Cold War’s most destabilizing strategic nuclear forces –

multiple independently targetable re-entry vehicles (MIRVs) on ICBMs that by

concentrating many warheads on single targets arguably create incentives for

striking ﬁrst in a crisis – Russia is relying heavily on MIRVs. Indeed, Russia is

23. See DAVID CLIFF ET AL., VERTIC, IRREVERSIBILITY IN NUCLEAR DISARMAMENT: PRACTICAL

STEPS AGAINST NUCLEAR REARMAMENT 5 (2011) (exploring principle of irreversibility and offering

recommendations); Hans M. Kristensen & Matt Korda, Russian Nuclear Forces, 2019, 75 B

ULL.

TOMIC SCIENTISTS 73 (2019) (analyzing Russian nuclear modernization); Kristensen & Korda, United

States Nuclear Forces, 2020, supra note 17 (analyzing United States nuclear modernization).

24.

25. See 2018 NPR, supra note 6, at x-xii, 10, 52-56 (discussing modernization programs); Aaron

Mehta, Trump’s New Nuclear Weapon has been Deployed, D

EFENSENEWS (Feb. 4, 2020) (lower-yield

W76-2 warhead now starting to be operationally deployed).

26.

434 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 10:429

building a new 10-warhead “Sarmat” ICBM, dubbed “Satan II” by NATO.

To hearty applause, during a recent State of the Union address Putin showed a

video that depicted this hydra-headed missile showering Florida – home to

Trump properties – with warheads.

After decades of reduced nuclear tensions, concern that the nuclear super-

powers may be more willing to use nuclear weapons has been growing. The nu-

clear sabre rattling and modernization just discussed are part of the reason.

Nuclear policy statements by both powers have reﬂected escalating tensions.

Observers disagree about how substantively Russian and U.S. doctrine have truly

changed.

But the anxiety level itself about these matters is telling. For example,

although the phrase does not appear in available Russian military doctrine state-

ments, the Trump Administration’s 2018 NPR stressed that the United States is

responding to the possibility that Russia believes it can “escalate to de-escalate.”

That is, threaten or employ nuclear weapons ﬁrst to induce an adversary to back

down in a conventional conﬂict.

A stated purpose of the U.S. modernization

effort is to ensure that Russia understands that crossing the nuclear threshold

would not be successful and instead be met by retaliation or escalation.

Notable

as well is that the U.S. response to Russia’s annexation of Crimea in 2014 report-

edly includes a war plan in the European theater that has an enhanced role for

U.S. nuclear-capable bombers.

Neither side has a “no ﬁrst use” policy, and the

Trump Administration has reversed the Obama Administration’s drive to reduce

the role of nuclear weapons in U.S. national security policy.

27. See Dakota S. Rudesill, MIRVs Matter: Banning Hydra-Headed Missiles in a New START II

Treaty, 54 S

TAN. J. INT’L L. 83, 100-1 (2018) (analyzing implications of MIRVs and Russian

modernization).

28. See Sanchez, supra note 20.

29. Regarding Russia, see A

MY F. WOOLF, CONG. RESEARCH SERV., R45861, RUSSIA’S NUCLEAR

WEAPONS: DOCTRINE, FORCES, AND MODERNIZATION 3-7, 34-35 (Jan. 2, 2020) (analyzing evidence of

Russian doctrinal changes and related debate). See also 2018 NPR, supra note 6, at 8-10 (Trump

Administration view of changes in Russian doctrine and implications). Regarding the United States,

both the Obama and Trump Administrations have included substantively similar language at the center

of their nuclear policy statements, particularly about only employing nuclear weapons in extreme

circumstances where vital interests are at stake. However, the Trump Administration has explicitly

abandoned the Obama Administration’s efforts to reduce the role of nuclear weapons in U.S. security

policy and is ﬁelding new systems. See 2018 NPR, supra note 6, at 21 (Trump NPR); U.S. D

OD,

UCLEAR POSTURE REVIEW vii-viii (2010) [hereinafter 2010 NPR] (Obama NPR).

30. See W

OOLF, supra note 29, at 6; 2018 NPR, supra note 6, at 30. See also Kristen Ven Bruusgaard,

The Myth of Russia’s Lowered Nuclear Threshold, W

AR ON THE ROCKS (Sept. 22, 2017) (skeptical

analysis of claim that Russian doctrine anticipates “escalate to deescalate” and lowered threshold for

nuclear employment).

31. 2018 NPR, supra note 6, at 8-9.

32. See Kristensen & Korda, United States Nuclear Forces, 2020, supra note 17, at 50-1.

33. See 2018 NPR, supra note 6; 2010 NPR, supra note 29. Russia abandoned the Soviet Union’s

ofﬁcial “no ﬁrst use” policy in 1993 as its conventional forces disintegrated in the wake of the Soviet

Union’s political and economic collapse. See W

OOLF, supra note 29, at 3-4. The United States has never

had such a policy.

2019] COMING BACK FROM OBLIVION, AGAIN 435

3. Arms Control

The early 1980s and recent years stand out as moments of rapid roll-back of

prior progress on nuclear arms

control. The Soviet invasion of Afghanistan ended

tente and prompted President Carter to pull the second strategic arms limita-

tion treaty (SALT II) from Senate consideration.

Arms talks went nowhere for

years as both sides modernized. Then, as now, modernization by the world’s nu-

clear “haves” is generating criticism from the nuclear “have-nots” under the 1968

Nuclear Non-Proliferation Treaty (NPT) that the “haves” are not honoring their

treaty commitment to work toward negotiated nuclear disarmament.

See Treaty on the Non-Proliferation

of Nuclear Weapons art. VI, July 1, 1968, 21 U.S.T. 483, 729

U.N.T.S. 161 [hereinafter NPT] (Article VI requires all parties to “pursue negotiations in good faith on

effective measures relating to cessation of the nuclear arms race at an early date and to nuclear

disarmament, and on a treaty on general and complete disarmament”). One of the deals at the core of the

NPT was that non-nuclear weapon states (the “have-nots”) would foreswear nuclear arms if nuclear

weapon states (the “haves”) would agree to Article VI. Resumed arms racing calls into question the

ﬁdelity of the nuclear superpowers to this deal and to their legal obligations. Nuclear arms racing also

runs against global efforts toward a treaty “on general and complete disarmament.” Id. Such an accord

was opened for signature in late 2017 and as of the end of 2019 had garnered 34 state parties and 80

signatories. See Treaty on the Prohibition of Nuclear Weapons, Sept. 20, 2017, 729 U.N.T.S. 161. No

nuclear weapon state and no NATO member voted for it at the United Nations or has signed the treaty.

See also Joint Press Statement from the Permanent Representatives to the United Nations of the United

States, United Kingdom and France Following the Adoption of a Treaty Banning Nuclear Weapons

(July 7, 2017), https://perma.cc/Y6FK-AF7H (announcing intent not

to sign the treaty).

In recent years, the INF Treaty’s formal demise in August 2019 was preceded

by suspension of its sibling pillar of post-Cold War European security: the 1990

Conventional Forces in Europe (CFE) treaty that managed the post-Cold War

drawdown in the conventional weapons often cited as rationales for tactical nu-

clear weapons in Europe.

See Treaty on Conventional

Armed Forces in Europe, Nov. 19, 1990, S. T

REATY DOC. No. 102-8,

2441 U.N.T.S. 285 [hereinafter CFE Treaty]. Russia suspended its participation in 2007. In response, the

United States in 2011 stated it would no longer observe some treaty requirements. In 2015, Russia

announced a complete halt to compliance. For discussion, see Kingston Reif, Russia Completes CFE

Treaty Suspension, A

RMS CONTROL TODAY (Apr. 2015), https://perma.cc/AU97-S9BY (discussing CFE

treaty’s equalization of conventional forces, relationship to tactical nuclear weapons in Europe, and

related actions by Russia and United States).

The 2010 New START treaty – which limits U.S. and

Russian strategic delivery vehicles to 700 (operational) to 800 (total), caps

deployed strategic warheads at 1,550, and provides veriﬁcation via intrusive on-

site inspections – is the last bilateral nuclear arms limitation treaty in force. U.S.

agreement to its ﬁve year extension in 2021 is in doubt.

So too is the future of

the 1992 Open Skies Treaty that since the Cold War’s end has provided literal

34. See Treaty on the Limitation of Strategic Offensive Arms and Protocol, U.S.-USSR, June 18,

1979, S. T

REATY DOC. No. 96-25 (1979) [hereinafter SALT II]. Carter technically requested indeﬁnite

postponement of Senate consideration but knew that SALT II now had no hope. For discussion, see

ARTHOFF, supra note 8, at 1055, 1061-62.

35.

36.

37. See Reif & Bugos, supra note 21 (Russia willing to extend New START but the United States has

not agreed, and U.S. President Trump is interested in bringing China into the U.S.-Russian nuclear arms

regime).

436 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 10:429

transparency by allowing each side to overﬂy the other.

See Treaty on Open Skies, Mar. 24, 1992, S. TREATY DOC. No. 102-37 (1992); Kingston Reif &

Shannon Bugos, U.S. Considers Open Skies Treaty Withdrawal, A

RMS CONTROL TODAY (Nov. 2019),

https://perma.cc/ML7Y-JR2F (U.S. considering withdrawal

but gaining valuable intelligence on

Russian forces); David A. Koplow, Back to the Future and Up to the Sky: Legal Implications of “Open

Skies” Inspection for Arms Control, 79 C

AL. L. REV. 421 (1991) (analyzing treaty).

The 2018 NPR made

explicit reference to the Cold War in arguing that deployment of U.S. Pershing II

missiles in Europe in the 1980s resulted in the INF Treaty that banned it and its

Soviet counterparts. The Trump Administration’s theory appears to be that the

path out of nuclear arms racing involves doing it again.

B. Differences

Plainly, there is abundant reason to

believe that relations between the nuclear

superpowers have returned to early 1980s depths. And, the Trump Administration’s

analogy to the arms racing that preceded nuclear reduction treaties at the Cold

War’s end has some intuitive appeal. But the Cold War analogy is imperfect. Our

moment of tension is distinct. There is good reason to be skeptical that the old an-

swer of arms racing is the best answer.

1. Geopolitics

As in the early 1980s there are only two nuclear superpowers. But more gener-

ally the geopolitical competition is less stark. It is less easy to anticipate, and less

symmetrical.

The United States and Russia in global security context are different states but

not as different as they were during the Cold War. The bipolar Cold War clash of

ideological visions and largely separate socio-economic systems has been

replaced by disagreement about Russia’s place in the evolving U.S.-built post-

World War II international order. Rather than its complete replacement, Russia

(like China) seeks a global system with a less powerful United States, a larger se-

curity sphere in which the United States has little inﬂuence, and more room for

authoritarianism, nationalism, and state capitalism. Despite its authoritarianism

and worrisome human rights record, Russia today is a much more open society

than during the Cold War. Thanks to globalization and the information revolu-

tion, Russia is much more integrated economically and culturally with the rest of

the world – a world in which the volume, variety, velocity of change is continu-

ally increasing. Despite recent tensions, Washington and Moscow know each

other better and cooperate in many more ways than they did even at the height of

tente in the 1970s.

The international order overall is also no longer bipolar. Whereas once both

Washington and Moscow led large blocs, today only the United States leads a

sizable alliance bloc and has an expansive global network of security alliances.

But neither is the world unipolar, as it was immediately after the Cold

38.

2019] COMING BACK FROM OBLIVION, AGAIN 437

War.

Multi-polarity is a reality. Power – political, military, and economic – is

more widely distributed across the globe than at any point since to World War II.

That makes the national security policies of Washington and Moscow matter less

in relative terms, and inevitably their nuclear weapons matter less, too, to some

unquantiﬁable degree. China, in particular, is now more powerful than Russia in

nearly every respect except the size of its nuclear arsenal – one that China is thor-

oughly modernizing.

2. Nuclear Forces

In the early 1980s, China had a small strategic nuclear force. To hold at risk

targets in the United States,

China for decades relied primarily on a limited num-

ber of non-alerted ICBMs with high-yield warheads, reﬂecting a minimum credi-

ble deterrence policy.

Today, China is a rising nuclear power. Beijing is ﬁelding

modern MIRVed missiles on land and its ﬁrst ﬂeet of ballistic missile submar-

ines.

China’s mass production and deployment of short, medium, and interme-

diate range conventional missiles (which could in theory be loaded with some of

the several hundred nuclear warheads China is believed to possess) have provided

a rationale for Russian and to some extent U.S. efforts to pursue new systems and

break free of the INF Treaty’s restrictions.

See D

EF. INTELLIGENCE AGENCY, U.S. DOD, CHINA MILITARY POWER: MODERNIZING A FORCE

FIGHT AND WIN (2019), https://perma.cc/V9LP-LG3U.

It remains unclear if Beijing truly

wants more than, ﬁrst, to hold at risk U.S. conventional forces operating in or

near China’s sphere of inﬂuence (for example, in defense of Taiwan or in the

South China Sea), and second, a credible second-strike nuclear capability to

reduce the chances China would have to back down in a crisis that goes nuclear.

Even so, China’s new hardware makes China a more signiﬁcant nuclear actor

than it was during the Cold War. Its improved forces matter in absolute terms to

any potential adversary. In relational terms they matter because Chinese nuclear

modernization could ripple through Asian deterrence relationships and prompt

faster modernization by India and in turn by Pakistan. The South Asian powers

39. For an inﬂuential contemporary analysis, see Charles Krauthammer, The Unipolar Moment,

ASH. POST, July 20, 1990 (“world power resides in one reasonably coherent, serenely dominant,

entity,” the U.S.-led Western Alliance).

40. See Hans M. Kristensen & Matt Korda, Chinese Nuclear Forces, 2019, 75 B

ULL. ATOMIC

SCIENTISTS 171 (2019) (discussing Chinese nuclear modernization).

41. See J

EFFREY LEWIS, THE MINIMUM MEANS OF REPRISAL: CHINA’S SEARCH FOR SECURITY IN THE

NUCLEAR AGE (2007) (China for decades maintained a small minimum strategic deterrent, with

warheads not loaded on missiles).

42. See Kristensen & Korda, Chinese Nuclear Forces, 2019, supra note 40. In the early 1980s, China

completed a ballistic missile submarine. It was reportedly plagued by problems and is not known to have

ever become operational. See L

EWIS, supra note 41, at 35 (discussing vessel); Robert S. Norris & Hans

M. Kristensen, Chinese Nuclear Forces, 2006, 62 B

ULL. ATOMIC SCIENTISTS 60, 61 (2006) (no known

operational patrols).

43.

44. As the Chinese Communist Party has stoked internal nationalist sentiment in recent decades to

buttress its hold on power, Chinese ofﬁcials have become concerned that they could be forced from

power if Taiwan declares independence – or otherwise if there is a serious crisis with the United States –

and they were seen as backing down. See S

USAN L. SHIRK, CHINA: FRAGILE SUPERPOWER 2-3 (2007).

438 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 10:429

did not ﬁeld nuclear forces 35 years ago. Additional pressure today to modernize

could drive dangerous proliferation within Indian and Pakistani arsenals: higher

numbers and greater variety in terms of warheads and their delivery systems.

China’s nuclear forces matter in comparative terms because even a still-smallish

Chinese arsenal inevitably matters more now that the United States and Russia

scrapped 85 percent of their arsenals after the Cold War.

As noteworthy as modernization in China, Russia, and the United States is,

the nascent nuclear arms race

lacks the colossal scale that characterized the

U.S.-U.S.S.R. nuclear competition. China gives no indication of interest in ﬁeld-

ing tens of thousands of nuclear warheads and thousands of missiles. Neither do

Russia or the United States, at least so far.

Russia and the United states are modernizing qualitatively, and noisily touting

a handful of new kinds of weapons and replacements for aging systems (Russia’s

“Satan II” heavy ICBM, and planned U.S. replacements for each leg of its strate-

gic triad over the coming decades, for example). Both sides may grow their forces

in number to a limited extent, taking advantage of the freedom provided the lack

of limits on tactical nuclear weapons, the INF Treaty’s demise, and the potential

lack of extension of New START. But, to date, the new arms race is a much more

limited affair in terms of the number of new nuclear delivery vehicles to be pro-

duced, the number of weapons expected to be ﬁelded, and their dollar cost.

With a stagnant economy and constrained production capabilities, Russia may

continue to struggle to ﬁeld strategic forces near New START’s caps.

For some

time both sides will continue to rely heavily in the ﬁeld on nuclear delivery sys-

tems that will be two to six decades old.

In contrast, in the 1980s both nuclear superpowers were rapidly ﬁelding multi-

ple new systems to replace relatively young hardware.

For a contemporaneous discussion that emphasized a potential Soviet lead, see U.S. D

OD, SOVIET

MILITARY POWER: AN ASSESSMENT OF THE THREAT 1988 at 98–100 (1988), https://perma.cc/WTG5-

DRN7

The Soviet warhead

stockpile and spending on U.S. nuclear forces had a similar vector, increasing at a

rapid annual pace throughout the ﬁrst half of the 1980s. Security concern about

falling behind (the emergence of a dreaded “gap” in bombers, missiles, or other

45. A nuclear war in South Asia could cause millions of prompt deaths and injuries, and it could

produce severe environmental damage and a “nuclear famine” across the globe. See Ira Helfand, The

Humanitarian Consequences of Nuclear War, 43 A

RMS CONTROL TODAY 22, 24 (2013).

46. See 2018 NPR, supra note 6, at xi (U.S. spent 10.6 percent of its defense budget in the 1980s on

nuclear forces; the Trump Administration has sought an increase to 6.4 percent).

47. For discussion of Russia’s difﬁculties matching U.S. strategic forces, see recent and past analyses

from Kristensen & Korda and the predecessor team of Kristensen and Robert Norris. See, e.g.,

Kristensen & Korda, Russian Nuclear Forces, 2019, supra note 23; Hans M. Kristensen & Robert S.

Norris, Russian Nuclear Forces, 2011, 67 B

ULL. ATOMIC SCIENTISTS 67 (2011).

48. For example, U.S. ICBMs and B-52H bombers have been in service since the 1960s. See

Kristensen & Norris, United States Nuclear Forces, 2020, supra note 17, at 47 (table of U.S. nuclear

forces with deployment dates). Russia has some newer ICBMs and submarines but also relies on

ICBMs, bombers, and submarines from the Soviet era. See Kristensen & Norris, Russian Nuclear

Forces, 2019, supra note 23, at 74 (table of Russian nuclear forces with deployment dates).

49.

2019] COMING BACK FROM OBLIVION, AGAIN 439

systems), prestige, and domestic bureaucratic pressures and political incentives

combined to drive full-tilt arms racing by both sides. The dynamic reﬂected the

classic security dilemma of one side’s action to protect itself driving adversary

responses that reduce security, raise concern about adversary attack, and spiral

tensions upward. The Cold War’s arms racing yielded arsenals that were so mas-

sive that nuclear accidents had become altogether too frequent, their ﬁscal cost

had reached unsustainable levels for both parties, anxiety about war and paranoia

were growing on both sides, and the inventories themselves if ever employed at

scale would produce what was accurately termed “overkill” – and even the end of

civilization.

The public record reﬂects multiple serious U.S. nuclear warhead accidents, including warheads

falling out of aircraft and otherwise becoming compromised in crashes and explosions. See E

RIC

SCHLOSSER, COMMAND AND CONTROL: NUCLEAR WEAPONS, THE DAMASCUS ACCIDENT, AND THE

ILLUSION OF SAFETY 168-70, 184-86, 191, 245-49, 262, 308-11, 327 (2013) (at one point during Cold

War a nuclear bomb “had been inadvertently jettisoned once every 320 ﬂights”; over 12 year period “at

least 1,200 nuclear weapons had been involved in ‘signiﬁcant’ incidents and accidents”). The Soviet

military inferentially must have had at least as many accidents, although they are not similarly

documented in open sources. Regarding overkill, by the mid-1980s the superpowers had approximately

70,000 nuclear weapons between them. In 2019, the U.S. and Russian arsenals totaled over 10,000

warheads. See Hans M. Kristensen & Matt Korda, Status of World Nuclear Forces, F

ED’N AM.

CIENTISTS, https://perma.cc/FD9U-PUQG.

In short, the Cold War experience with nuclear excess exists as a

warning rather than a reality that has fully returned, much less one to be repeated.

3. Arms Control

The willful unraveling of the bilateral

nuclear arms control regime under

Presidents Putin and Trump is regrettable. But the present moment, however dim,

remains more favorable than the early 1980s in important respects. One is that as

of evaporation of prospects for implementation of the 1979 SALT II strategic

arms limitation treaty there was no bilateral agreement in force in the early 1980s

that limited the number of offensive arms.

The ﬁrst SALT accord, termed SALT I, was a congressional-executive agreement in force from

1972 to 1977. Interim Agreement on Certain Measures with Respect to the Limitation of Strategic

Offensive Arms, U.S.-USSR, May 26, 1972, 23 U.S.T. 3462 [hereinafter SALT I]. The 1972 ABM

Treaty remained in force in the 1980s, but limited only defensive missiles designed to destroy incoming

warheads. Treaty on the Limitation of Anti-Ballistic Missile Systems, U.S.-USSR, May 26, 1972, 23

U.S.T. 3435 (ABM Treaty). The United States withdrew in 2002. See U.S. Dep’t of State, Text of

Diplomatic Notes Sent to Russia, Belarus, Kazakhstan and Ukraine (Dec. 14, 2001), https://perma.cc/

6NWK-RSM2

Today, the nuclear superpowers

retain the option in 2021 of extending the New START treaty to 2026. Second,

rather than the 1980s challenge of crafting a ﬁrst-ever agreement that would pro-

vide veriﬁcation through on-site inspections (and raise classiﬁed information pro-

tection and legal concerns), New START not only provides such a ready and

extendable mechanism but builds on more than three decades of overwhelmingly

successful inspection-based bilateral arms control, to include veriﬁed weapon

destruction.

Our challenge is model extension and perhaps modiﬁcation, rather

50.

51.

52. See David A. Koplow, Eve of Destruction: Implementing Arms Control Treaty Obligations to

Dismantle Weaponry, 8 H

ARV. NAT’L SECURITY J. 158, 211-13 (2017) (success of New START treaty);

440 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 10:429

than model building. Thanks to this experience, the parties know well the beneﬁts

of arms control that features both limits and up-close veriﬁcation: balancing of

forces that fosters strategic stability, prevention of arms racing, predictability,

detailed knowledge of the forces of the other party, and conﬁdence in

compliance.

II. R

EFLECTION ON THE COLD WAR COMPARISON

The analogy of our time to the early 1980s Cold War is imperfect. It is also in-

structive. Several conclusions are readily apparent.

First, our current security environment may be more complicated than during

the Cold War, but arms control

has provided real beneﬁts – and continues to do

so. The United States and Russia continue dozens of annual on-site inspections

and data exchanges pursuant to New START. Force balancing, predictability,

transparency and information gathering, and dissuasion of cheating are enor-

mously important.

Second, there is nothing to suggest that the top priority for all participants in de-

terrence relationships – and therefore for force modernization and arms control –

should be anything other than enhancement of strategic stability.

It is encouraging

that the Trump Administration’s State and Defense Departments have stated

that they seek strategic stability. See Sec’y of State Michael R. Pompeo & Foreign Minister Sergey

Lavrov, Remarks at a Press Availability (Dec. 10, 2019), https://perma.cc/QU4R-Z9XF (remarks at joint

press

conference in Washington, D.C.); 2018 NPR, supra note 6, at vi-vii, 26.

In its classic

sense, strategic stability means alignment of incentives against shooting ﬁrst or

escalation. In a broader sense, it means alignment of incentives against arms rac-

ing and other force or policy moves that could undermine deterrence.

A third conclusion is that arms racing in the 1980s raised urgent, existential

questions about adversary intentions and capabilities, and therefore imperiled stra-

tegic stability. It could have that cost again if racing fully resumes. Other potential

costs include planning difﬁculties and enormous ﬁscal expense, at a time of a stag-

nant Russian economy, and of massive U.S. budget deﬁcits and an historically

high defense budget that will inevitably come down.

See Kate Davidson, U.S. Deﬁcit

Tops $1 Trillion in First 11 Months of Fiscal Year, W

ALL ST. J.

(Sept. 12, 2019, 3:29 PM), https://perma.cc/YSAD-ZV75 (massive deﬁcits); Dan Keeler, How the

Ballooning Federal Debt Threatens U.S. Defense, B

ROOKINGS (June 27, 2018), https://perma.cc/C37Z-

KM9T (high deﬁcits and record debt putting downward pressure on defense budget).

Racing would also likely

drive up the risk of nuclear accidents

– loss of control over warheads, or “leak-

age” to radicals who might use them for nuclear or radiological terrorism – in

view of the engineering principle that the more pieces a system has the greater

statistical chance one will fail. Now that China has begun to inch closer to nu-

clear peer-hood with Russia and the United States, and with potential knock-on

David A. Koplow, Arms Control Inspection: Constitutional Restrictions on Treaty Veriﬁcation in the

United States, 63 N.Y.U. L. R

EV. 229 (1988) (legal issues raised by on-site veriﬁcation).

53.

54. See Moniz & Nunn, supra note 4 (strategic stability broadly includes “processes, mechanisms,

and agreements that facilitate the peacetime management of strategic relationships”).

55.

56. For an open source discussion of the history of U.S. nuclear weapon accidents by a journalist, see

CHLOSSER, supra note 50.

2019] COMING BACK FROM OBLIVION, AGAIN 441

effects to its deterrence relationships with India and Pakistan, the involvement of

China in any fully realized arms race could make that race’s trajectory harder to

predict. The dynamics could be harder to manage. There is good reason, in short,

to be skeptical of arguments that might unleash a full arms race – one that could

be expected to self-perpetuate.

The fourth and most encouraging lesson of the early 1980s is that the world

can change, and quickly. The world’s

close call with global thermonuclear war

during Able Archer 83, the collapse of arms talks thereafter, rising concern that

the other would shoot ﬁrst, and confrontational attitudes – all of this gave way in

a few short years to a general reduction in tensions, multiple arms control agree-

ments (the INF, CFE, and START I accords), the Cold War’s end, and the most

massive reduction in war-making potential the world has ever known. It took a

series of shocks to the system to disrupt the arms race and end the Cold War, par-

ticularly the terrifying close call of Able Archer, and new leadership in Moscow.

Ascendance of Mikhail Gorbachev in the Soviet Union provided U.S. Presidents

Ronald Reagan and George H. W. Bush a partner in managing the Cold War’s

end.

In view of rising nationalism and accelerating nuclear modernization, more

complex international security dynamics, and ongoing collapse of the bilateral

nuclear arms control regime, another big shock may be necessary for a nuclear

course correction. A terrifying nuclear crisis, and perhaps also new leadership in

one or both countries, may again be what it takes for progress on bilateral arms

control to be achieved. We should remember, however, that in our time the rate

and scope of change seems to accelerate continually. That suggests that current

dynamics may be disrupted sooner than expected – for better or for worse.

III. T

HINKING AHEAD: AN AGENDA

Times are hard for arms control. Time is also precious. Policymakers and

thinkers should use this moment to argue for retention of stability-enhancing

aspects of the current U.S.-Russian nuclear relationship, while also developing a

slate of actionable arms control proposals to have at hand when circumstances

again favor progress.

First, New START must be extended in 2021. The arguments against extension

are weak. These include Trump’s generalized

accusation that it is a “bad deal”

that favors Russia, that it does not address Russia’s lead in tactical nuclear weap-

ons, that it does not address hypersonics or underwater nuclear drones or other

new technologies, and that it does not include rising nuclear power China.

See, e.g., Steve

Holland, Trump Says He, Putin Discussed New Nuclear Pact Possibly Including

China, R

EUTERS (May 3, 2019, 12:03 PM), https://perma.cc/YA3V-SJCF.

reality, the beneﬁts of arms control plainly accrue to the treaty. New START bal-

ances U.S. and Russian forces and discourages arms racing at the strategic level.

57. For a thoughtful reﬂection, see JOHN LEWIS GADDIS, THE UNITED STATES AND THE END OF THE

COLD WAR 127-30 (1992).

58.

442 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 10:429

The treaty’s on-site inspections are an intelligence collection method of enor-

mous value, allowing U.S. weapons experts to view Russian forces and warheads

in the ﬁeld, and also to verify dismantlement of nuclear hardware once pointed at

the United States. Dating to the Cold War, issues in the Washington-Moscow

relationship have often been separated into separate tracks to facilitate progress.

There is no compelling reason that must change now, and that all nuclear issues

must be resolved in one comprehensive agreement. Nor is it clear that replace-

ment of current warheads on strategic forces with maneuverable hypersonics now

threaten the strategic balance. Russia in 2019 began limited deployment of a

hypersonic glide vehicle on the SS-19 missile, those warheads and their missiles

count against the New START limits, and there are no indications that strategic

stability is in appreciable peril.

The offensive forces of major nuclear powers so

vastly outnumber and so easily overwhelm missile defenses that neither side will

in the foreseeable future (and may well never) have missile defenses reliably ca-

pable even of intercepting enough of the other side’s slower, non-maneuverable

warheads to disrupt deterrence of a strategic nuclear attack. It is, therefore, hard

to imagine a nuclear exchange becoming more or less likely because of hyperson-

ics, and virtually impossible to see a solid hypersonics-based case against extend-

ing New START.

Finally, much of the new hardware on the drawing board

touted by President Putin is still in development, and not expected to be ﬁelded

until after an extended New START would expire in 2026.

See Hans M. Kristensen & Matt Korda, The New START Treaty Keeps Nuclear Arsenals in Check

and President Trump Must Act to Preserve It, F

ORBES (Dec. 10, 2019, 11:18 AM), https://perma.cc/

6K8F-J5ML

In short, there is no

compelling reason to make a hypothetical and unlikely comprehensive new treaty

the imperative alternative to New START extension.

Once the beneﬁts of New START are captured and extended for an additional

ﬁve years, it is worthwhile

to try to update the arms control regime. Forces and

parties left out of New START are legitimate – indeed, long-overdue – subjects

for new talks. Of course, it is challenging to understand how China could be inte-

grated into a strategic forces-only treaty in a way that seems fair and workable.

Blessing multiplication of the Chinese arsenal (to come up to the level of Russia

and the United States) or requiring deep cuts to the strategic forces of the two nu-

clear peers (to drop to China’s level) would be assailed from different quarters as

problematic. Meanwhile, Secretary of State Mike Pompeo’s suggestion that

59. See WOOLF, supra note 30, at 14, 20-22 (“Avangard does not change the existing balance”).

60. It is in theory conceivable that Russia could select a hypersonic maneuverable warhead (probably

using a tactical or theater-range missile or other delivery vehicle) for employment in an “escalate to de-

escalate” limited strike in-theater, in order to frustrate U.S. or NATO missile defenses. But the utility of

employing one or a small handful of warheads in the context of a conventional conﬂict that is not going

the Kremlin’s way is distinct from the focus of New START, which is facilitation of deterrence at the

level of strategic (long-range) nuclear forces. A second scenario in which the capabilities of hypersonic

maneuverable warheads might be meaningful is an accidental or unauthorized launch in which a small

volley of warheads that would in theory otherwise be limited enough to be countered by missile defenses

instead penetrates those defenses. Of course, making a catastrophic failure of nuclear command and

control more deadly is no rationale for buying weapons.

61.

2019] COMING BACK FROM OBLIVION, AGAIN 443

China – and potentially the British and French, too – could be included in an

agreement that promotes “a set of conditions” favorable to “global strategic sta-

bility” without all states coming under a ﬂat cap (“any particular level”) is poten-

tially encouraging, but gauzy.

See Sec’y of State Michael R. Pompeo & Foreign Minister Sergey Lavrov, Remarks at a Press

Availability (Dec. 10, 2019), https://perma.cc/QU4R-Z9XF (remarks at joint

press conference in

Washington, D.C.).

A more concrete approach would be an

American-Chinese-Russian agreement limited geographically to INF-range and

shorter-range missiles in Asia. Another is a geographically unrestrained three-

party agreement that considers all missiles of all parties, including China’s large

conventional missile inventory. Other ideas for which I have argued in recent

years include the United States and NATO accepting Russian possession of some

manageable number of intermediate-range nuclear-capable missiles (INFs) (and

one at this point could add a U.S. commitment not to ﬁeld a new nuclear sea-

launched cruise missile (SLCM)), in exchange for Russian agreement to limits on

tactical nuclear weapons or on Russia’s multiple-warhead (MIRVed) land-based

ICBMs.

If keeping New START for just ﬁve more years is looking uncertain, anything

like the grand bargains just mentioned may be non-starters without a major shock

to the system, one that prompts a concerted multi-party drive to reduce nuclear

dangers. In the meantime, smaller proposals may have better prospects. The nu-

clear powers could craft a code of conduct for nuclear forces. The parties could

agree, for example, to keep nuclear-capable aircraft and submarines well away

from one another’s airspace and waters. They could agree to regular data

exchanges about their total warhead stockpiles, or about their intermediate-range

and tactical nuclear weapons. Russia and the United States could also agree to

extend the New START inspection regime indeﬁnitely. At the very least, the two

nuclear superpowers would then continue to have transparency about their long-

range forces even if the treaty’s limits expire. That could provide a foundation

and point of departure for re-starting arms control down the road.

ONCLUSION

In the early 1980s it was easy to think that the worst was yet to come. Able

Archer 83, television depictions of nuclear holocaust, and a full-tilt arms race

gave little reason for optimism. And yet quite suddenly the world changed. The

chill that followed De

tente’s demise was followed in turn by revolutionary

change in attitudes and leadership. Tensions were eased, and new legal instru-

ments were forged that were unprecedented in their force reductions and intrusive

veriﬁcation regimes. If it happened then, it can happen again. When the opportu-

nity for progress returns, policymakers and thinkers will be in a stronger position

if they have wisely used these discouraging days after the INF Treaty’s demise to

develop a new agenda and promising ideas.

62.

63. See Rudesill, MIRVs Matter, supra note 27; Rudesill, Regulating Tactical Nuclear Weapons,

supra note 24.

444 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 10:429