Examination of Witnesses (Questions 300-311)
PROFESSOR CHRISTOPHER
GREENWOOD QC, PROFESSOR
NICK GRIEF,
PROFESSOR STEVEN
HAINES AND
PROFESSOR PHILIPPE
SANDS QC
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.
| 
