Examination of Witnesses (Questions 220-239)
PROFESSOR CHRISTOPHER
GREENWOOD QC, PROFESSOR
NICK GRIEF,
PROFESSOR STEVEN
HAINES AND
PROFESSOR PHILIPPE
SANDS QC
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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