Select Committee on Defence Minutes of Evidence

Examination of Witnesses (Questions 300-311)


30 JANUARY 2007

  Q300  Mr Havard: Professor Greenwood, you said there were the states that did not possess the weapons and the ones that did and they combine together in the treaty. The obligation on the ones that did not have them was that they would not acquire them; those that had them would try to negotiate them away, in some indefinable process. There is another group of people who were not signatories at all.

  Professor Greenwood: Yes.

  Q301  Mr Havard: My understanding would be, just as a typical boy from the valleys, is that I would suspect that the people who were signatories to the treaty should not then collaborate with people who were never signatories to the treaty at all to acquire them.

  Professor Greenwood: That is right. The treaty does not, of course, bind the states that are not parties to it, but it does bind the states that are parties not to transfer nuclear technology to states that do not accept the assurances—

  Q302  Mr Havard: The United States know this, do they?

  Professor Greenwood: I am sorry?

  Mr Havard: The United States know this, do they?

  Q303  Chairman: We will come on to the issue of India in a second. Let us come on to it now. What is your view of the United States' agreement with India? Do you regard that as a legal or an illegal agreement under the NPT?

  Professor Greenwood: I am sorry, Chairman. I would have to go and have a look at the text of the agreement and think a lot harder before I could answer that.

  Q304  Mr Havard: I wish we had a fly half with a sidestep like that!

  Professor Sands: Can I come back on this point because the other thing that we have not yet put on the table is that states are free to leave the NPT. One state recently has, much to many people's regret. We need to keep in mind also that possibility. Can I refer you in that context to a very interesting opinion piece that appeared in the Wall Street Journal on 4 January 2007. The authors were George Schultz, William Perry, Henry Kissinger and Sam Nunn, an interesting group of characters, to say the least. It is entitled A World Free of Nuclear Weapons and it alludes expressly to this concern about the future wellbeing of the Treaty on Non-Proliferation of Nuclear Weapons. The concern that I am expressing about the wellbeing of that Treaty is shared also by these four individuals and I can leave a copy of the piece with the Clerk.

  Q305  Chairman: Professor Grief, did you want to answer?

  Professor Grief: The point about the MDA, yes. In my memorandum, which you have, I speculate about that and I suggest tentatively that the MDA might be void because it conflicts with Article VI, but that is predicated on Article VI enshrining a superior obligation in international law, an obligation of jus cogens, and even I would possibly find myself arguing against myself in some respects on that issue.

  Chairman: And we could not have that.

  Mr Jenkins: A simple thing sprang to mind when you referred to the fact that we would like a world without nuclear weapons. We would all like a world without nuclear weapons but unfortunately it is not going to happen with this team development concept. To do that you would not only have to get rid of the nuclear weapons; you would also have to get rid of all the people who have the knowledge to construct new nuclear weapons, so I am not arguing about proposing that, that we have to get rid of all these individuals.

  Chairman: Is this a legal question?

  Mr Jenkins: I am asking is it legal to do it, whether it is a right and a duty under the NPT to eradicate from the civilian population all those people with the knowledge to develop these ideas so we can stay in the real world.

  Chairman: I think we may take that as a rhetorical question.

  Q306  Robert Key: Can I just pursue the question of the Mutual Defence Agreement of 1958 between the US and the UK? What is the legal basis of the Mutual Defence Agreement and how does it relate to the Nuclear Proliferation Treaty?

  Professor Grief: I do not know precisely the legal basis. I assume it is a bilateral treaty between the two countries and the crucial provision in the MDA is renewed from time to time, I think most recently about a couple of years ago until 2014. I have seen, as you may have, an opinion by Professor Christine Chinkin and Rabinder Singh QC that suggests that the MDA does not raise any issues under Article I of the NPT, but that there could be issues under Article VI. Indeed, it would constitute a material breach of Article VI of the NPT because the MDA envisages and provides for the enhancement of the UK's nuclear weapon programme, not its diminution, which arguably is what Article VI envisages and requires.

  Q307  Robert Key: You do not agree?

  Professor Greenwood: No, I do not agree with that at all. I agree with the first part of the premise that there is no violation of Article I because it does not involve the transfer of nuclear weapons. Article VI—let us just think it through for a minute. If under Article VI Britain is entitled to maintain nuclear weapons of its own, but the agreement with the United States about co-operation as to maintaining a British nuclear deterrent is unlawful, then the logical conclusion to that would be that the NPT would require Britain to set up a nuclear weapons production programme of its own. That seems to me to be wholly contrary to common sense and to the policy lying behind Article VI.

  Q308  Robert Key: The NPT was actually updated last month. In his letter dated 7 December 2006 to the President of the United States the Prime Minister said that they would like these submarines to continue to carry Trident II D5 missiles, and in addition he says, "I believe that this programme has the potential to open up new opportunities for future co-operation and collaboration on other aspects of future submarine platforms", and that remark was agreed with by the President in his response, also of 7 December 2006—Royal Mail were working very well—and he concurred with that proposal. Are there any legal restrictions on such new co-operation or apparent extension of the agreement?

  Professor Greenwood: I do not see any difficulty with that at all. Also, the particular reference was to the submarine platform rather than to the nuclear weapon itself, which I think would fall wholly outside the scope of the treaty.

  Professor Haines: This goes back to the point I made earlier about the whole Trident package consisting of a variety of different elements. I do not see the MDA causing a problem in relation to that.

  Robert Key: Professor Sands, do you agree with that?

  Q309  Chairman: Hold on. Professor Greenwood, you said the reference was to the platform rather than to the submarine itself. What the President said on 7 December 2006 was, "In this context the United States fully supports and welcomes the intention of the United Kingdom to participate in the life extension programme for the Trident II D5 missile", so that is more than just the platform, is it not?

  Professor Greenwood: Yes. The MDA renewal is more than just the platform. It was the particular passage that Mr Key quoted just now that I was referring to. I understood the question to me to be, "Does this statement by the Prime Minister and its acceptance by the President raise legal implications under the NPT?", and I think the answer to that is plainly no.

  Professor Sands: I had not seen this until right now. I would simply like to know: what do the words "on other aspects of future submarine platforms" mean? I come back to the point I made earlier. It is a matter of considerable regret, but words used by the Prime Minister may not necessarily have the meaning which the reasonable person in the street would understand them to mean. It would be nice to know what he meant.

  Q310  Mr Havard: Can I ask a question that might seem a bit odd? It is essentially about vicarious liability. Say, for example, that we have got Britain and the US as signatories to all of these things and there is a level of collaboration and co-operation, extended or otherwise. The United States goes off and does something independently. It seems we as the UK are not culpable in any sense of having stepped outside our obligations in relation to the treaty or anything else in helping someone else acquire nuclear weapons. It is a debate, for example, that the United States may well be. Where does that leave us in relation to our collaboration with the processes of nuclear development? If we have got a direct relationship with them and they strike a relationship which is not allowed do we have any vicarious liability, other than morally, politically or otherwise? Do we legally have any liability?

  Professor Greenwood: It is not termed "vicarious liability" in international law but there are circumstances in which one state may be liable for a wrongful act by another. In my view you would have to have a much greater degree of proximity to the wrongful act than we are talking about here. Co-operation in the development of a weapon does not in my view make one liable for the subsequent use of that weapon. An example of where a state would perhaps be liable for a wrongful act by another state is if it allowed a base on its territory to be used for a specific operation, such as American planes flying from a British air base to attack a particular target. That is capable of making the United Kingdom liable. The fact that the United Kingdom enters into a bases' agreement in my view would not be.

  Q311  Chairman: Professor Grief, would you agree with that?

  Professor Grief: I agree.

  Chairman: On that note of harmony and agreement I think we ought to draw this session to a close unless there are any further questions.

  Mr Hamilton: Chairman, this is an observation more than anything else. Listening to the evidence session this morning, when it comes to weighing up the arguments as politicians there will be some for and some against, and I will probably be in a minority in this company but hopefully a majority in our place. At the end of the day, listening to legal opinion, surely we should just weigh that as one other option we have to think about in the process we are going through about Trident. If we sit down and listen to legal opinion it is divided and therefore as we make up our minds as politicians it should only be seen as one aspect of the whole argument and the moral aspect as well.

  Chairman: I think we would all agree with that.

  Linda Gilroy: We are all agreed on that.

  Chairman: Further harmony then, and I declare this meeting closed.

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