Select Committee on Defence Minutes of Evidence

Examination of Witnesses (Questions 100-119)


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.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2007
Prepared 7 March 2007