Legal Commentary on the Trident White Paper
George Farebrother, December 2006

On 7 December 2006 the Government published its White Paper on "The Future of the United Kingdom's Nuclear Deterrent". This stated its decision to replace the current Trident-carrying Vanguard-class submarines with new ballistic missile submarines.

In the White Paper much play is made with the obvious fact that that no one can predict the future. However, if this is taken as a justification for Trident replacement it would militate against any hope of nuclear disarmament. If we cannot predict the future now, we shall not be able to predict it in the future and the successor to Trident will need its own successor. Furthermore, if each nuclear-armed state refuses to disarm until the others have, then no one can start the ball rolling.

We are told that Non-Proliferation Treaty (NPT) does not oblige us to disarm unilaterally. However, at the year 2000 NPT Review Conference the UK and the other nuclear states unanimously agreed on "an unequivocal undertaking by the Nuclear-Weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament." This is a natural extension of the NPT and should be seen as legally binding. It applies to each nuclear state. It was also agreed that they are to "reduce their nuclear arsenals unilaterally", and take "unilateral initiatives".

Dialogue about disarmament is being clouded by a false dichotomy between "unilateralism" and "multilateralism". In fact, both work together. States do not always negotiate a treaty and then simultaneously put the results into effect. There is often a series of unilateral steps. For example in the 1980s Gorbachev made unilateral nuclear withdrawals. This led to the crucial 1987 treaty to abolish intermediate and short range nuclear missiles.

The NPT demands disarmament negotiations in “Good Faith”. This means not doing anything which undermines the whole purpose of talks. Trident renewal does just this by projecting dependence on nuclear weapons well into this century. Furthermore, once the investment is made in building the boats and their infrastructure, it would be very difficult to cancel all this if disarmament negotiations suddenly showed signs of progress.

The White Paper repeatedly claims that the UK's nuclear status is "recognised under the NPT". This is not accurate. Words like "recognise", which suggest some sort of diplomatic acceptance, are not used in the Treaty. The Nuclear Weapon States are just defined "for the purposes of this treaty" as those who tested before 1967. The treaty is not a charter for the nuclear-armed states to carry on as usual. It calls upon them to disarm.
Much is made of the 20% reduction in warheads and other measures over the last ten years. These include reducing the number and variety of nuclear weapons and the lengthening of notice to fire them. These are steps in the right direction. But they are not enough to comply with the NPT. If the White Paper proposals are accepted, Britain will retain nuclear weapons fully deployed and ready for a variety of uses indefinitely. This casts doubt on the White Paper's claim that it stands by "our unequivocal undertaking to accomplish the total elimination of nuclear weapons".

Such a process should be accompanied by indications that nuclear weapons will continue to play a diminishing role in the UK's security policy. These might include such measures as storing warheads ashore, abandoning constant submarine patrols and a pledge not to use nuclear weapons first. Signals like this would allow Britain to provide leadership to several groupings of UN states only too anxious to set up serious negotiations on nuclear disarmament.

However, the White Paper does not seem to be moving in this direction. It speaks of "holding the system continuously at a sufficiently high level of readiness... .." The Government insists that " ... we will not rule in or out the first use of nuclear warheads" and refers to "the continued availability of a lower-yield from our warheads...", thus ensuring indefinitely the "flexibility" of UK nuclear weapons.

Finally, the Government should face the argument that the radiation effects of nuclear weapons can never be predictable because this depends on the wind and atmospheric conditions which change from moment to moment. This would violate the International Humanitarian Law prohibition on indiscriminate weapons. If Trident, or its replacement, were ever used it would recklessly endanger civilians thousands of miles away and over long periods of time. A country which wants to abide by the rule of law cannot therefore easily accommodate a successor to Trident. The White Paper pays this issue scant attention but it deserves a far more rigorous analysis.