Examination of Witnesses (Questions 100-119)
MS SIAN
JONES, MR
BRUCE KENT,
MS DI
MCDONALD
AND MR
JOHN AINSLIE
16 JANUARY 2007
Q100 Chairman: Let us move on. I
think you agree that that sort of cost should be factored in but
it is not something you would say would lead to a deficit. It
could be beneficial.
Mr Kent: Yes.
Chairman: I want to move on to the legalities
of it. By the way, we did promise Kate Hudson she could have the
opportunity to talk about international treaty obligations and
legalities. So that is why we are getting into this now, and it
is going to be our final area of questioning.
Q101 Mr Jenkin: The burden of legal
opinion against the replacement of Trident—and I use that
shorthand expression whether it has been replaced or not—is
first that the possession of nuclear weapons is intrinsically
illegal because obviously possession conveys an intent that the
host nation is prepared to use them; and, secondly, possession
of nuclear weapons or the replacement of Trident represents a
failure to disarm which is in breach of the Nuclear Proliferation
Treaty. Do you agree with that?
Mr Kent: Failure to negotiate
in good faith. It really does not qualify any individual country
to disarm per se but it calls upon them to negotiate in
good faith, and that is what the ICJ held up in 1996.
Q102 Mr Jenkin: Returning to the
question of possession and preparedness to use, what is the legal
basis or legal authority on which your opinion rests?
Mr Kent: The International Court
of Justice 1996, to which the only exception was that they could
not make up their minds about the issue of use where the actual
survival of a state is in question, the only exception that was
allowed at that time. They said, "We do not have the facts",
and probably the facts relate to the amount of contamination from
even a low-yield nuclear weapon that would affect civilian populations.
That is probably the reason why they did not come to a conclusion
on that point, but everything else, they said, was bound by humanitarian
law and that possession and use was illegal, and that was their
advice.
Q103 Mr Jenkin: They did not exactly
say that, did they? I am quoting from the judgment: "In view
of the current state of international law and of the elements
of fact at its disposal, the Court cannot conclude definitively
whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defence which is the
basis of the survival of the state"?
Mr Kent: That is just what I have
been quoting. That is the one exception.
Q104 Mr Jenkin: Exactly. You said
they would be illegal, but that is not correct, is it?
Mr Kent: I said "with the
one exception that Court ruled", and that is the one exception
that you have just read out. They could not make up their minds.
Q105 Mr Jenkin: So, it is possible
that the use of nuclear weapons would be legal under international
law?
Mr Kent: It is possible or it
is impossible, we do not really know. It is certainly not, as
the White Paper said, allowed, or whatever the expression was.
Mr Ainslie: I think the other
point is that, if you are accepting that ICJ judgment, it would
be conceivable to see that in the White Paper it actually saying
Britain is only going to use nuclear weapons in the extreme circumstance
where the survival of the state is at risk. It does not. It uses
this term "vital interest", which is far broader.
Q106 Mr Jenkin: I think the term
"vital" in respect of interests is an interesting one,
and I think that is a grey area, but who would make that judgment
at that particular time? It would have to be a state, would it
not? It would have to be the Government. It could not be an international
court.
Mr Ainslie: There is more in there
in terms of when the ICJ was mulling this over. My recollection
of it is really in this Cold War scenario where there are all
these missiles coming in and there are mass casualties and the
state could quickly be annihilated. It is not saying in that scenario
it is okay, it is saying that in that scenario the judges between
them could not reach a clear agreement, but that is quite different
from vital interests where something is happening and it is in
our vital interests to protect something.
Q107 Mr Jenkin: The point is that
the judgment did not say that the use of nuclear weapons would
be illegal, did it?
Mr Kent: In all circumstances,
it did not.
Q108 Mr Jenkin: It did not say that.
Thank you.
Ms Jones: Can I just say that
the only part where the ICJ could not reach a unanimous decision
was—Anyway, counter to your argument, they could not decide
amongst themselves, though there are dissenting opinions, but
they could not be lawful except in the self-defence situation.
Self-defence is not, as John has said, in the White Paper. I would
refer you to the 1998 Strategic Defence Review and the subsequent
December 2003 document where the words "vital interest"
are played out and explained, and in no way does that equate with
self-defence. So, we are looking at a situation where the only
thing the ICJ gave us was use in self-defence, and that is not
our claim to be able to use them.
Q109 Mr Jenkin: Except that I have
looked at the Opinion to which the CND paper refers, and it does
not refer to any of that. I have also looked at the Opinion prepared
on behalf of Greenpeace by Philippe Sands, and it is interesting
the caveats that are entered. It says, "The use or the threat
of use of nuclear weapons in self-defence would be unlawful where
it fails to meet the requirements of necessity and proportionality."
That is quite a strong caveat. It goes on, "We are of the
view that the proportionality test is unlikely to be met."
It does not say it cannot be met. It goes on to say, "It
is difficult to conceive of any circumstances." It does not
rule out circumstances. I think we have established, have we not,
that the possession of nuclear weapons with the intent to use
them under unspecified circumstances is actually legal.
Mr Kent: Very specified. The survival
of the state is a specification.
Q110 Mr Jenkin: Even the legal opinions
chosen by anti-nuclear organisations actually do not rule out
the legal use of nuclear weapons?
Mr Kent: No, that is quite right.
Ms Jones: Can I follow up on that.
What would have been interesting in the White Paper would be to
see from the Government an answer to your question: under what
circumstances would they feel that their decision to use nuclear
weapons would pass those two fundamental tests of international
humanitarian law which are applicable to all forms of war: necessity
and proportionality? Those are the things that maybe you should
ask the Government: where do they feel that it would have both
necessity and proportionality were they to use nuclear weapons,
and allow people to understand under what circumstances those
decisions would be made. The last statement we had from the Government,
although I understand his position is slightly different now,
is Geoff Hoon saying he would have been willing to use them in
a conflict situation in Iraq, and he said that in 2003.
Q111 Mr Jenkin: I have to confess
that I was a little surprised by his utterance on that point.
Ms Jones: The question should
be asked again.
Mr Jenkin: I would share your opinion
that it would be useful for the Government to give us their legal
opinion about their possession for potential use but without necessarily
giving away the circumstances in which they might use them, because
obviously that would undermine their effectiveness, as it has
done.
Linda Gilroy: The Strategic Defence Review
did, however, highlight the limitations placed on the use of British
nuclear weapons, including the restrictions in place in the three
nuclear-free zones around the world, and the Government did state
some limitations: "We will not use nuclear weapons against
a non-nuclear weapons state not in material breach of its nuclear
non-proliferation obligations unless it attacks us, our allies,
or a state to which we have a security commitment in association
or alliance with a nuclear weapons state", and that is where
the Iran situation came in. That quote is often used selectively
without also referring to that, and I am sure you have noticed
that part of the Strategic Defence Review statement as well.
Chairman: Thank you. That puts that in
context.
Q112 Mr Jenkin: Turning to the other
main burden of your collective presentation, which is that the
failure to disarm is somehow in breach of the nuclear proliferation
treaty—and I correct myself because you did correct me,
failure to negotiate in good faith—but where is your legal
authority for arguing that somehow the Government is not negotiating
in good faith even if we are replacing Trident?
Mr Kent: I think it is for you
to tell me where the Government is negotiating nuclear abolition.
Q113 Mr Jenkin: We have already heard
that the Government has substantially reduced its stocks and capabilities
of nuclear weapons. In fact, the end of the Cold War resulted
in just such a negotiation with the Soviet Union, a broad agreement.
Mr Kent: It is all perfectly explicable
in terms of retaining a minimum nuclear deterrent; it is nothing
to do with nuclear—
Q114 Mr Jenkin: Where does it say
retaining a minimum nuclear deterrent is contrary to negotiating
in good faith?
Mr Kent: Where is the negotiation
in good faith? That is what I am asking. There is not any at the
moment.
Ms McDonald: The negotiations
we are looking for is to restart the conference on disarmament
in Geneva. If that were going on, then I would understand your
point, but I am not sure what you are referring to. There is no
negotiation.
Q115 Mr Jenkin: I do not think this
is a illegal question, I think it is fundamentally a political
question. Let me put it to you. If the Government believed that
unilaterally disarming our nuclear weapons was actually going
to contribute to less security and more instability globally,
that would be an irresponsible thing to do, would it not?
Mr Kent: The two issues are separate.
I can conceive of people saying we should retain British nuclear
weapons and even renew Trident, but we are obliged to negotiate
the abolition of all nuclear weapons.
Q116 Mr Jenkin: But if the number
of states possessing nuclear weapons is actually on the increase,
it is quite respectable to argue that abandoning our own nuclear
deterrent would actually contribute to global instability and
a reduction in global security. It is an argument, is it not?
Mr Kent: Yes, it is an argument.
Q117 Mr Jenkin: So if that is a respectable
argument, there is no legal basis for saying we have got to negotiate
now, with a deadline, to get rid of our nuclear weapons, is there?
Mr Kent: The argument comes from
quite a different source. The ICJ called on us to negotiate in
good faith, and that is not going on. I am boring myself and,
very probably, boring the Committee.
Mr Ainslie: I wonder if I can
put it in a different way. The NPT arose in this climate when
there was a lot of concern that lots of nations were going to
get nuclear weapons, and it is a deal basically. The nations that
did not have nuclear weapons said, "No, we are not trying
to get them", and the nations that did have nuclear weapons
said, "We will try to make progress towards disarmament."
So there are two sides of that. Basically, if we are not keeping
our side of the deal, if we are saying we are going to keep nuclear
weapons for the next 50 years, then there is a sense in which
the other side can say, "Hang on, why do you expect us to
keep our part of the deal?"
Q118 Chairman: Mr Ainslie, is not
that confusing the issue of negotiations with the issue of whether
you are keeping nuclear weapons. Let us suppose that the Government
is frightfully keen on negotiating on non-proliferation and the
reduction of nuclear weapons but everybody else's negotiation
desk is closed, they are not interested in negotiations. Is the
Government, because it is not negotiating with anybody because
there is nobody else interested in negotiating, thereby in breach
of the Non-Proliferation Treaty?
Mr Kent: I do not think so. It
is for a lawyer to say, but I would think probably not in a situation
where no other country wanted to negotiate, but until we have
tried that out we are not in a position to say.
Q119 Chairman: If not, Mr Kent, then
surely the answer to your question, "Where are these negotiations
going on?", is that the Government is doing its best, it
is ready and willing to negotiate, but it is not its fault if
nobody else is taking it up.
Mr Kent: It is a totally passive
role, is it not. Active action is called for to start negotiations.
The commitment to disarm in Geneva is in complete collapse.
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