Examination of Witnesses (Questions 209-219)
PROFESSOR CHRISTOPHER
GREENWOOD QC, PROFESSOR
NICK GRIEF,
PROFESSOR STEVEN
HAINES AND
PROFESSOR PHILIPPE
SANDS QC
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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