Select Committee on Defence Minutes of Evidence

Examination of Witnesses (Questions 209-219)


30 JANUARY 2007

  Q209 Chairman: Good morning. Welcome to this session on the Strategic Nuclear Deterrent. We are going to be concentrating on the legal and Treaty aspects of the decision to renew the deterrent that is proposed to us by the Government's White Paper. The intention of this inquiry is to help the public debate. To our witnesses this morning, could I ask you to pitch your answers, please, in the knowledge that you will be speaking not to lawyers but to the public and also Members of Parliament who will not have your legal expertise. If you would bear that in mind I should be most grateful. Could I ask you to begin by introducing yourselves, saying what your background is very briefly and giving just two sentences on what your reaction is to the Government's White Paper. Could I begin with Professor Greenwood.

  Professor Greenwood: Thank you very much, Chairman. I am Christopher Greenwood. I am Professor of International Law at the London School of Economics and I am a barrister practising international law in both the English courts and international tribunals. I have specialised in relation to matters relating to the laws of war for most of my academic career. My two line reaction to the Government's proposal is that looked at purely in terms of international law there is no obstacle whatever to the Government doing what it has proposed to do. I do not think that either the Non-Proliferation Treaty or the laws of armed conflict would preclude updating Trident in the way that is suggested.

  Professor Grief: Thank you, Chairman. I am Nick Grief, Steel Raymond Professor of Law at Bournemouth University. I have been at Bournemouth for about nine years. I specialise in public international law and human rights. I also practise as a barrister from Doughty Street Chambers here in London. My reaction to the White Paper is almost diametrically opposed to Christopher's. I do see issues under the Non-Proliferation Treaty and also under international humanitarian law.

  Professor Haines: Thank you, Chairman. My name is Steven Haines. I am Professor of Strategy and Military Operations at the Royal Holloway College, one of the University of London Colleges. Until three years ago I was a serving naval officer working in the Central Policy Staff in the Ministry of Defence. As well as being an academic lawyer specialising in military operational law, I also wrote the UK Government's current strategic doctrine and worked as a legal adviser in my last appointment in the MoD until September 2003. My reaction to the White Paper is exactly the same as Christopher's. I do not believe there is any problem with the proposal in the White Paper of a legal nature and, indeed, I think the proposal is both appropriate and expected given the history of Trident.

  Professor Sands: My name is Philippe Sands. I am Professor of Law at University College London and, like some of my other colleagues, a practising barrister at Matrix Chambers. My area of expertise is general international law and, with at least one other member of this panel, I participated in the proceedings before the International Court of Justice on the Advisory Opinion on the legality of the use of nuclear weapons. My reaction to the White Paper is perhaps slightly more nuanced. It has certain positive elements but there is one aspect that I think is of concern and that is the apparent extension of deterrence theory into areas related to terrorism which may be of a non-nuclear character and that does raise to my mind issues in relation to the Treaty on Non-Proliferation of Nuclear Weapons.

  Chairman: Thank you. We will start with Brian Jenkins.

  Q210  Mr Jenkins: It could be argued given the differences of legal aspects, and we have got differences from the start this morning obviously, the legal aspects should not be decisive in any parliamentary debate at all. How would you respond to that?

  Professor Greenwood: I agree with you entirely, the legal aspects should not be decisive in the sense that all I am saying is there is no legal obstacle to updating Trident in the way the Government suggests. The question of whether this country should do so is a political question which is obviously for you and your colleagues to decide. In a different environment if we were saying that a proposed course of conduct was plainly illegal I would hope that is something that would be decisive, but that is very much not what I am saying here.

  Professor Grief: My reaction to the question is to recall what I think the Director of Public Prosecutions said recently about the response to the so-called "war on terror". I think he said words to the effect that "a fear-driven and inappropriate response to the war on terror could lead to our abandoning values which are critical to the maintenance of the rule of law". I see direct parallels between that context and the present one. I am very concerned that we might indeed abandon some of those essential values.

  Professor Haines: My reaction is that given I do not believe the proposal in the White Paper is in any way unlawful, the issue of whether or not we should go down the route that the Government is suggesting is entirely a policy decision.

  Professor Sands: You cannot separate out legal and political considerations, they are closely interrelated in all things but here in particular. My concern here is to the extent that the White Paper signals an extension of nuclear deterrent into what it calls "unforeseeable future circumstances concerning terrorism, state-sponsored terrorism and other related issues", you open a door to the argument of illegality and that will be seized on by others who may themselves be engaged in activities which are not consistent with their obligations under the Treaty on Non-Proliferation of Nuclear Weapons. What I am thinking of in particular is the situation right now in Iran where those concerned will be looking very closely at the position of governments like the United Kingdom in order to perhaps assist themselves find wiggle-room out of their own commitments. That is the area where I think I have some concern.

  Q211  Mr Jenkins: The difficulty we have got is if we had four engineers they might come up with the same answer but four lawyers come up with different answers and you particularly, Professor Sands, extended that. I would like to ask you do you believe Iran will stop their programme of nuclear development if next month we said "We will abandon our nuclear deterrent". Do you believe that to be true? You extended it into the area of politics and I did not ask you that, I asked you from a legal point of view.

  Professor Sands: No, of course I do not for a moment believe that what the United Kingdom does next month will have that type of decisive effect, but to the extent that we allow wiggle-room it will allow others with different views to open the door. My concern here is that by taking this decision at this moment in this particular way you send a signal out to others who may also want to adopt a different approach to their obligations under the Treaty.

  Q212  John Smith: What do you mean by "in this particular way"?

  Professor Sands: What I am concerned about in the White Paper is that there appears to be a move away from the traditional doctrine of using the nuclear deterrent to respond to wholly and exclusively nuclear threats. There is language in the White Paper which does open the door to the possibility that terrorism in other parts of the world could justify the renewal or the extension of Trident. That is the particular concern that I have, that right at this moment using the very real terrorist threat that we now face as a justification for extending the nuclear deterrent could be seized on by others in a particular way.

  Mr Jenkin: I want to ask a general question about whether we all agree about the role of international law. Does it have the same status as domestic law or does international law tend to get corroded by events, if I can put it that way? Does the difference of opinion on the particular matters we are discussing reflect the difference of interpretation of the role of international law?

  Q213  Chairman: That is a huge question. Who would like to begin?

  Professor Greenwood: First of all, no, international law is not the same as domestic law, in particular in the sense that you cannot go to a court in this country to enforce most rules of international law in the same way you can rules of English law. I do not think there would be any difference between the four of us that international law is law, that it is legally binding on states and that the Non-Proliferation Treaty and the rules of international law relating to the use of weapons are binding on this country. The Government accepted that proposition unequivocally in the nuclear weapons proceedings in the ICJ 10 years ago.

  Q214  Chairman: Any difference of opinion there?

  Professor Haines: None at all.

  Q215  Chairman: The US Government would not accept it.

  Professor Greenwood: The US Government accepted exactly the same proposition I have just put in terms in nuclear weapons proceedings in 1995-96.

  Q216  Mr Jones: In a previous life I read umpteen, hundreds of barristers' opinions and I know if you ask four barristers what colour a red car is you will get four different answers; if you pay enough you will get someone to tell you it is white. Professor Sands, you gave the example in terms of Iran, to what extent is that moving away from the legal side of it into the realms of politics, the point that Brian Jenkins was making?

  Professor Sands: The answer that I gave to the previous question was I do not think you can separate out the two. We have a situation right now in Iran which we are all extremely attentive to that here you have a country that is a party to the Treaty that appears to be in the process of, or on the verge of, violating its obligations. We need to be able to go to that country with our allies and other members of the international community and say, "You cannot act in this way". In order to be able to do that we need to be absolutely certain that we are fully meeting our own obligations. It is a simple point that I make and I do not take it any further than that but I do not believe you can separate out the legal and the political and right at this moment those connections are important.

  Q217  Mr Jones: Does that not depend on you using the same legal framework to judge what they are doing and what we are doing and every time you interpret this piece of law using that same framework all the time otherwise you are going to get different answers to different questions, ie that the red car might be white?

  Professor Sands: Ultimately it turns on the point that Professor Greenwood made, that it depends who the decision-maker is. These issues are not going to come before the English courts, they may or may not come before an international court, but at some point they may reach a particular decision-making body. The International Atomic Energy Agency has a particular role to play in these issues and we know, for example, that the former Director General of the IAEA, Dr Blix, has taken the view that Britain's decision in relation to the renewal of Trident appears not to be consistent with Article VI of the 1968 Treaty. When you get someone of his authority expressing that view—

  Mr Jones: I have met Dr Blix on a couple of occasions and he is into the realm of now selling books more than trying to give legal opinions.

  Q218  Chairman: Selling books is an honourable thing to do. Professor Greenwood, you were shaking your head at what Professor Sands was saying.

  Professor Greenwood: I was also wondering whether I could make a bid for selling a book! I do actually disagree quite profoundly with Philippe about this and it is a disagreement that goes much wider than the nuclear weapons issue. I think it is vitally important that as an international lawyer you explain to a client, or in this case to a parliamentary committee, what you think the international law on the subject is. We are not the best qualified people, frankly, to speculate about whether Iran would react in one way or another, that is a judgment where if you need expert evidence you will take it from a strategist, but the decision is a political one. I do not think it is right to allow one's approach to political questions to colour one's answers about the law.

  Chairman: Thank you. I want to move on to a slightly different question now.

  Q219  Linda Gilroy: The White Paper proposes to replace the Vanguard-class submarines, not the Trident missiles, and so arguably merely maintains, rather than replaces, the deterrent. Philippe Sands has outlined one concern from the White Paper which goes beyond that. Do any of the rest of you have any issues which would take us into realms beyond that statement I have just made?

  Professor Grief: I have concerns that even to maintain the deterrent raises issues under Article VI of the Non-Proliferation Treaty which requires the United Kingdom to negotiate in good faith towards nuclear disarmament. That obligation to negotiate in good faith was emphasised by the International Court in its Advisory Opinion in 1996. The Article VI obligation is elaborated upon by agreements reached at the end of the 2000 NPT Review Conference that states parties agreed on a number of practical steps and one of those would commit them to a decreasing reliance upon nuclear weapons in their security policies.

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