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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