Select Committee on Defence Written Evidence


APPENDIX A

The Trident White Paper and International and Humanitarian Law

  1.  Greenpeace notes that the intention of the Defence Committee is to inform "robust and thorough" parliamentary and public debate on the arguments put forward by the Government for the retention and renewal of the UK's current Trident system.

  2.  Greenpeace also notes that The Defence Committee inquiry will consider the arguments put forward by the Government for the retention and renewal of the UK's current Trident system and "will consider the international treaty implications of the Government's decision to retain and renew the deterrent and the possible impact of the decision on the UK's non-proliferation efforts."

  3.  Greenpeace agrees that there should be a full public debate and that that debate should include a thorough examination and analysis of the position at international customary law as well as under international treaties. For that reason it has commissioned an advice from Philippe Sands QC and Helen Law, on the legal issues, a copy of which is attached. The summary of the advice appears on page 3 and is not repeated here.

  4.  The advice was written before the publication of the White Paper and copies were sent to the Prime Minister, the Attorney General, the Secretary of State for Defence, and the Secretary of State at the Foreign and Commonwealth Office. The legal analysis and the concerns raised about the risk of breach of international and humanitarian law remain relevant to the proposals in the White Paper.

  5.  In particular, we would draw your attention to the views of Sands and Law about Article VI of the NPT.

  6.  The objective of Article VI is total nuclear disarmament.

  7.  The Sands/Law advice is that "attempts to justify Trident upgrade or replacement as an insurance against unascertainable future threats would appear to be inconsistent with Article VI".

  8.  This is what is said in the White Paper:

    "It is not possible accurately to predict the global security environment over the next 20 to 50 years. On our current analysis, we cannot rule out the risk either that a major direct threat to the UK's vital interests will re-emerge or that new states will emerge that possess a more limited nuclear capability, but one that could pose a grave threat to our vital interests... We have thus decided to take the steps necessary to sustain a credible deterrent capability in the 2020s and beyond."

  9.  The Government's decision now to replace nuclear weapons in 15 years time in case of a future, as yet unascertained risk is a clear signal that the UK has no intention of abiding by Article VI.

  10.  This is not altered by the fact that the decision is also to reduce the stockpile of operationally available warheads to fewer than 160. Kofi Annan in his speech of 28 November 2006 (a copy of which is attached) said that:

    "Some States seem to believe they need fewer weapons, but smaller and more useable ones — and even to have embraced the notion of using such weapons in conflict. All of the NPT nuclear-weapon States are modernising their nuclear arsenals or their delivery systems. They should not imagine that this will be accepted as compatible with the NPT. Everyone will see it for what it is: a euphemism for nuclear re-armament." (our emphasis)

  11.  If the UK's decision is not accepted as compatible with the NPT then it is possible that it will be viewed as a material breach of the treaty, thus permitting other states to withdraw from or suspend the NPT. Hence, a decision now to renew Trident will result in undermining the Treaty which, through reducing the risk of proliferation, has done most to safeguard security. Such an undermining may even provide state parties with a justification for suspending the Treaty and acquiring their own nuclear weapons.

  12.  These serious concerns about legality have effectively been dismissed, without analysis, in The White Paper which simply says that:

    "Renewing our minimum nuclear deterrent capability is fully consistent with all our international obligations."

  13.  Greenpeace asks that the advice upon which the Government has reached its conclusion that their decision is consistent with international obligations be made available. Without it a thorough debate and analysis is not possible. Greenpeace draws the Committee's attention to the Information Commissioner's view that "When Government chooses to publish a statement which was intended to be seen as a clear statement of the legal position the Government was adopting, there is a public interest in knowing the extent to which it had been based on firm and confident analysis and advice, or was at least consistent with what had gone before."

  14.  The Government accepts that it does not have a "free hand" in developing new weapons systems. It accepts it is bound by principles of international law which place limits on the ways in which war can be waged, and hence on the weapons which can be used and by Treaty obligations. Faced with expert legal opinion that its decision could be illegal and undermine the NPT, the Government should open that decision for full consideration and public debate.

22 January 2007





 
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