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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.