Select Committee on Defence Minutes of Evidence

Examination of Witnesses (Questions 220-239)


30 JANUARY 2007

  Q220  Chairman: Would you agree, Professor Grief, that the replacement of the submarines as such would not be an illegal act?

  Professor Grief: I think I could probably agree that replacement as such but—

  Q221  Chairman: It is the maintenance of the deterrent that is causing you concern?

  Professor Grief: My problem is the maintenance of the deterrent and the fact that I do not see sufficient evidence in the White Paper of movement on the part of the Government in the direction of nuclear disarmament and, therefore, in the direction of fulfilling the obligations of Article VI.

  Q222  Mr Hamilton: I listened to that answer and to many people outside they would be rather concerned that there are people who actually oppose the continuation of the nuclear deterrent. There is a compromise in many people's eyes and that would be to go ahead with Vanguard which would allow the lifetime of the nuclear deterrent to continue, but what you are saying is even that would be wrong. That does not conflict with Article VI, as I understand it. Article VI talks about the extension of nuclear deterrence, indeed the renewal of nuclear deterrence would not be wrong. If you extend nuclear submarines, which allows you to maintain what you have already got, there is a conflict.

  Professor Grief: With respect, I would disagree because Article VI does require the states parties to pursue negotiations in good faith towards nuclear disarmament. The practical steps that I mentioned earlier that were agreed by the states parties in 2000 are not simply political commitments, they are in themselves legal undertakings and they are part of the context in which we must interpret Article VI of the Treaty. In my opinion they constitute a subsequent agreement by the parties to the Treaty regarding the interpretation and application of Article VI of the Treaty and, therefore, the Article VI obligation to pursue and conclude negotiations in good faith is elaborated upon by these practical steps, which include reducing your reliance on—

  Chairman: We will come on to that.

  Q223  John Smith: Is a substantial reduction in the number of warheads an indication of good faith? The White Paper pointed in the direction of the possibility of the reduction of platforms from four to three.

  Professor Grief: I think those things are steps in the right direction, particularly if they were to happen within a reasonably short period of time. I would like to see as a matter of good faith compliance with Article VI more concrete steps, one suggestion being—

  Q224  John Smith: I am not really asking that. I am asking whether you think those proposals in the White Paper do comply with our obligations in terms of good faith, not what additional ones there should be.

  Professor Grief: They are steps in the right direction.

  Q225  Mr Borrow: Could I ask, just following up on that, would you say that the other four major nuclear powers are also in breach of Article VI or are there any signs that any of the four are taking material steps to disarm or enter into reasonable negotiations?

  Professor Grief: I think I would have to say that I do not know enough about their policies except rather superficially and, therefore, I am reluctant to comment in this context on their compliance or non-compliance.

  Q226  Mr Borrow: Presumably if the UK, in your judgment, is not complying by not negotiating you would need to know whether the other parties were serious about negotiating before you made a judgment on the good faith of the UK Government.

  Professor Grief: Yes, I think that is a fair comment.[1]

  Q227 Mr Borrow: You do not know that so you cannot give us that judgment.

  Professor Grief: I do not know enough.

  Q228  Chairman: If you had the feeling that the UK was actually doing better than other countries but was still in breach of its own obligation then it would have to follow, would it not, that the other countries were in breach of their obligations?

  Professor Grief: Yes, I think that would follow.

  Q229  Linda Gilroy: In that respect can you reference for us any discussion about what a minimum deterrent consists of? Would you agree that of all the parties to the NPT and the Permanent Members on the Security Council Britain has done more than most and in the White Paper it says that we have something like 1% or 2% of the world's nuclear arsenal? Is there a debate legally about that? Is there not a case to be made that having established that as a benchmark it would be our duty to retain a minimum deterrent, to stay on the Security Council and to try and draw others to that benchmark?

  Professor Grief: I think there is everything to be said for setting an example for others to follow. My query, I suppose, is whether we are yet setting the example. I would prefer to see in terms of fulfilling the obligation a decommissioning of the submarines, a dismantling of the warheads and the fissile material could then be kept under lock and key ready to be reconstituted into a rudimentary deterrent.[2]

  Linda Gilroy: Forgive me, but what example can you quote of any country which has disarmed as a consequence of other countries giving up their nuclear weapons. There is not an example of one that is on the Security Council.

  Chairman: I do not think that is a legal issue. I do not think that is a question of legality.

  Linda Gilroy: No, but, as we said at the beginning, this is likely to be a political argument and, therefore, it is a question of weighing up whether we maintain our position with a credible seat on the Security Council to try and draw others to the benchmark which we have established by progressive steps to reduce our nuclear arsenal. There is an argument to that effect in my mind and what I am asking you as lawyers is, is there any legal debate on what a minimum deterrent consists of?

  Q230  Chairman: Can you answer that question?

  Professor Haines: I do not think that is a legal question, frankly. A minimum deterrent is so wrapped up in strategic considerations that it cannot simply be reduced to a legal question and I cannot give you a pure legal answer to it. I said earlier on that the legal issues are not going to be decisive in this because I felt that the proposals in the White Paper were perfectly lawful as I read them, therefore it was a political decision to be made. You cannot extract in many ways the legal issue from the strategic backdrop.

  Chairman: I think there was a difference of opinion between those who felt that the White Paper was correct who felt that the law was not decisive and it was a political issue and those who felt that it was incorrect, who felt that law was and should be a decisive matter. Kevan Jones.

  Q231  Mr Jones: Can I pull us back on to the legal issues. Can you just explain what the current legal restrictions are around the UK's possession of nuclear weapons? Is there any difference between the possession of strategic nuclear weapons and tactical nuclear weapons from a legal point of view?

  Professor Haines: Legally they are weapons whether they are strategic or tactical. Clearly there are a number of legal rules that weapons systems need to be deployed within the parameters of those rules. The difference between strategic and tactical is, for a start we do not have any tactical weapons these days but when we did have them, of course, they were likely to be used in very different circumstances from the use of strategic systems. For example, a nuclear depth bomb in the east Atlantic would not have the same impact on civilian populations as a weapon released on land.

  Q232  Chairman: Can I stop you there, Professor Haines. We are distinguishing between possession of nuclear weapons and the use of them.

  Professor Haines: Indeed.

  Q233  Chairman: Is the possession of strategic or—

  Professor Haines: No, not at all. Indeed, if you go to the Non-Proliferation Treaty, which others are referring to, of course, it states quite clearly in there that there are nuclear weapon states recognised and they are the states that have tested a nuclear device before 1967. Possession of nuclear weapons is recognised as lawful and legitimate in Treaty law in any case. On the question about Article VI of the NPT which Professor Grief has been going on about, I take a completely different view on that and I think what the Government is proposing is entirely consistent with the Article VI obligation to in good faith move in that general direction and, as he admitted, that is a move in the right direction but there is nothing in the NPT that says we have to give them up in a unilateral sense.

  Q234  Mr Jones: In terms of the current restrictions, what are they? "Good faith" has been bandied about but what is the legal definition of "good faith"? I have no doubt I am going to get umpteen different answers on that. What is your understanding of it in terms of this?

  Professor Haines: It does seem to me that if you are talking about the reduction of nuclear systems, which I would be very, very happy to see, I think there are far too many of them around, one thing one has to recognise is that this is a very sensitive area and you cannot go into this business adopting a unilateral position, it has to be through the process of negotiation. I see in the White Paper proposals for the extension of the Trident programme but a reduction in the Trident programme as sending out a reasonable signal that the Government is prepared to reduce and move in that direction. I think it would be useful if perhaps a wee bit more effort was put into encouraging the development of some sort of international negotiation over levels of possession, and I have said as much to people in Government, that I think they should follow this up with some effort of a diplomatic nature to encourage negotiations also consistent with Article VI of the NPT. The current position in the White Paper itself is not, as far as I am concerned, in any way in contravention of Article VI of the NPT.

  Professor Grief: Could I just come in on the definition of "good faith". I think one generally acceptable definition would be doing nothing which would render fulfilment of the Treaty obligation remote, ie unlikely, or impossible; more remote or impossible.

  Q235  Chairman: That is an example rather than a definition.

  Professor Grief: I would go back to my earlier remarks about—

  Q236  Chairman: Could you describe in legal terms what "in good faith" means?

  Professor Grief: In terms of Article VI and the duty to negotiate in good faith I think it means not negotiating from an entrenched position, negotiating sincerely towards the objective that is enshrined within the Treaty, namely nuclear disarmament, and doing nothing which would be likely to render fulfilment of that obligation remote or impossible.

  Q237  Mr Jones: Is this not meeting that in the sense that you will have a reduction in the number of submarines and the number of boats and, therefore, rather than contrary to that good faith this is a move in that direction?

  Professor Grief: I agree, it is a step in that direction, yes.

  Professor Greenwood: Might I just offer one comment about good faith. The duty under Article VI is to negotiate in good faith, it is a duty on all parties to the Treaty and it is a duty to negotiate to try and achieve three results and we have only focused on one: early cessation of the nuclear arms race, nuclear disarmament, and general and complete disarmament under strict and effective international control. It is very much built around the idea of a negotiating process to achieve a comprehensive agreed result. I cannot see any obligation in that that comes anywhere near unilateral disarmament. It is worth just mentioning, if I may, that the International Court two years after its opinion on nuclear weapons said about the principle of good faith that while it was immensely important "it is not in itself a source of obligation where none would otherwise exist". I think there is a danger of losing sight of that in the way in which people recite that particular extract from Article VI as though it is the answer to everything.

  Linda Gilroy: On that point, which I was going to raise, that there is more to Article VI than just nuclear disarmament, it is about cessation of the nuclear arms race, it is about the Treaty on general and complete disarmament under strict and effective control. To come back to the point I made about the minimum deterrent and the definition on it, an observation I would put into the melting pot is that I find it surprising that is not a part of the legal debate about this issue because if you can begin to structure a debate around that then you can facilitate those processes that Christopher Greenwood has just described in a way that we have not got the language and the framework to do at the moment.

  Q238  Mr Holloway: Professor Grief, if one argues that it is illegal for us to have a next generation could you therefore argue that the Treaty was dead and that people like Iran are perfectly justified in producing their own weapons?

  Professor Grief: The Nuclear Non-Proliferation Treaty was dead?

  Chairman: I think I would prefer to get on to the NPT later during the course of the hearing. Could you join in then with your questions? Dai Havard.

  Q239  Mr Havard: I am sorry I was late. My understanding of what has been said is that there is no international law which prohibits the possession of nuclear weapons. There are certain states that have themselves combined together in a Treaty form to decide what to do about proliferation and possible disarmament, Britain is one of those and, therefore, may have obligations in that debate, but as far as international law is concerned there is no law that stops possession. So all those people that are not signatories to the Treaty have no obligations to negotiate about anything. We are a bit like China and Iran with nuclear power here, are we?

  Professor Haines: Strictly speaking that is correct. North Korea, I suppose, is the obvious example of a state that is outside the NPT regime and it is not banned by that regime, therefore, from possessing nuclear weapons.

1   But while the search for nuclear disarmament clearly necessitates the co-operation of all states, each of the parties to the Non-Proliferation Treaty remains under an obligation to pursue negotiations on the matter in good faith. Back

2   Using a more basic delivery system. In other words, reverting to a threshold nuclear weapon status. Back

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