The successor to Trident and the Nuclear Non-Proliferation Treaty

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. Here will be considered those aspects related to the Nuclear Non-Proliferation Treaty (NPT). Specific questions are in bold.

Article VI of the Treaty says:

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

The Government claims to stand by "our unequivocal undertaking to accomplish the total elimination of nuclear weapons." As a nuclear weapon state "recognised under the NPT" it now has only one "deterrent" system, Trident, with only 160 deployed warheads, untargeted, and under several days' notice to fire. Only one submarine is on patrol at a time. The UK has ratified the Comprehensive Test Ban Treaty. Holdings of fissile materials are transparently recorded and their production has ceased. The UK supports a universal ban on their production.

Para 2-9, of the White Paper (partially repeated in .Box 3-1),

The UK’'s retention of a nuclear deterrent is fully consistent with our international legal obligations. The NPT recognises the UK’s status (along with that of the US, France, Russia and China) as a nuclear weapon State.

In Para 2-10 the White Paper goes on to say:

Article VI of the NPT does not establish any timetable for nuclear disarmament, nor for the general and complete disarmament which provides the context for total nuclear disarmament. Nor does it prohibit maintenance or updating of existing capabilities. ...

Initially we should draw attention to the repeated claim in the White Paper 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 (NWS) are just defined (in Article IX) "for the purposes of this treaty" as those who tested before 1967. The treaty does not give special status to the NWS. It calls upon them to disarm.

Can "definition", not "recognition" now be used to describe the UK's NPT status?

Crucial elements are missing from the White Paper's account of the UK's disarmament obligations. According to this "general and complete disarmament ... provides the context for total nuclear disarmament." This is perilously close to saying that nuclear disarmament is dependent on general and complete disarmament - which would postpone nuclear disarmament indefinitely.

However, the interpretation of any treaty must accord with its purposes, and the NPT is about nuclear weapons. It is only incidentally about "general and complete disarmament". The preamble is full of commentary such as:

"Considering the devastation that would be visited upon all mankind by a nuclear war ...", and " Declaring their intention to achieve at the earliest possible date the cessation of the nuclear arms race and to undertake effective measures in the direction of nuclear disarmament".

Any doubt about Article VI was dissipated in 1996 when the International Court of Justice (ICJ) ruled unanimously that “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”. The obligation is about nuclear weapons and nuclear weapons only. The Programme of Action adopted unanimously at the 2000 NPT Review Conference confirmed this by separating nuclear from “general” disarmament. We accept that mutual confidence in general disarmament is needed for progress in nuclear disarmament. Even so, there is a legal obligation to achieve nuclear disarmament in and for itself.

In view of the evidence from the sources, would the Government accept that nuclear disarmament and complete and general disarmament are legally independent?

The White Paper makes no comment on the issue of “Good Faith” emphasised in both the NPT and the 1996 ICJ Opinion. The latter rules that nuclear disarmament negotiation should be brought to a conclusion, not just pursued. "Good Faith" means negotiating sincerely, and not operating from entrenched positions. The objective must be pursued consistently and involve real political will. The conclusion must be reached "with all deliberate speed". The White Paper correctly points out that the NPT has no timetable for nuclear disarmament. However, the Treaty entered into force in 1970. Thirty six years is not compatible "with all deliberate speed".

The White Paper claims that the UK continues to make progress on the “13 practical steps ” towards nuclear disarmament agreed at the 2000 NPT Review Conference (Box 2-1). These practical steps are a natural and detailed extension of NPT Article VI and should be seen as legally binding. The essential element was "an unequivocal undertaking by the Nuclear-Weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament." This applies to each nuclear state. They are to "reduce their nuclear arsenals unilaterally".

The basic requirement of Good Faith is that the parties must not adopt policies which contradict the very purpose of negotiations. Can Trident replacement comply with this? One of the basic assumptions of the White Paper undermines the Good Faith obligation. The Executive Summary says: "It is not possible accurately to predict the global security environment over the next 20 to 50 years. On our current analysis, we cannot rule out the risk either that a major direct nuclear threat to the UK’s vital interests will re-emerge ..." This sort of speculation, repeated throughout the White Paper, cannot qualify as an imminent need for nuclear assurance. Such possibilities can always be invoked. The UK could well use the same arguments for an even longer extension when the new system itself becomes obsolete. An upgraded warhead would certainly violate our NPT obligations. However, The White Paper is not forthcoming on this. The Executive Summary says: "We do not yet have sufficient information to know whether it can, with some refurbishment, be extended beyond that point [the 2020s ...]"

Does the proposed 20% reduction in warheads meet requirements of the NPT?

A scenario in which the warheads were progressively reduced could be compliant with the NPT if progress in this direction were fairly brisk. 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 steps as storing warheads ashore, abandoning constant submarine patrols and a pledge not to use nuclear weapons first.

However, the White Paper does not seem to be moving in this direction. Para 4-2, refers to "holding the system continuously at a sufficiently high level of readiness... .." The new class of boats may well incorporate "radical changes". Although there will be "no enhancement of the capability of the missile ... it will not be possible to retain our existing Trident D5 missiles in service much beyond 2020" (White Paper 1.8-9). The Government insists that " ... we will not rule in or out the first use of nuclear warheads" (White Paper 3-4) and refers to "the continued availability of a lower-yield from our warheads...", thus ensuring indefinitely the "flexibility" of UK nuclear weapons.

The measures listed in the White Paper, such as reducing the number and variety of nuclear weapons and the lengthening of notice to fire, are necessary for full compliance with the NPT; but not sufficient. Britain will retain nuclear weapons fully deployed and ready for a variety of uses indefinitely. This negates the 13 Practical steps of the NPT 2000 Review Conference which include a "diminishing role for nuclear weapons in security policies ..." Negotiations cannot be carried out “in good faith” whilst projecting an upgraded nuclear weapon system 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". Furthermore Trident Renewal. means building more submarines and developing their support structure.. Could such work in progress be easily reversed if disarmament negotiations made significant progress? It may well inhibit the resolve of UK diplomats in their Good Faith negotiations.

Does the Government accept our account of the requirements of Good Faith negotiations. Do the measures for Trident renewal outlined in the White Paper meet these requirements?

Attempting to forestall objections, the White Paper considers the claim that "If the UK unilaterally gave up its nuclear deterrent, this would encourage others to follow suit" Its response is that there is "no evidence or likelihood that others would follow the UK down a unilateralist route." (White Paper Box 3-1). Objections, however, are more sophisticated than this. Firstly, there is the reaction of nuclear-capable states who may well take Trident renewal as a signal to go down the nuclear weapons path. Article X of the treaty allows a state to withdraw "if it decides that extraordinary events, ... have jeopardized the supreme interests of its country." -a path already taken by North Korea.

Furthermore the UK could fulfil its "unequivocal undertaking to accomplish the total elimination of nuclear weapons." by adopting a policy of "constructive non-renewal" in which nuclear weapons are seen to become less central to our security policy. The UK could take a leading role in several groupings in the UN such as the New Agenda Coalition (Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa and Sweden), states belonging to Latin America and Caribbean Nuclear-Free Zone, and some NATO states. One possibility is mentioned in Annex A of the White Paper. This is the Seven Country Initiative which includes Australia, Chile, Indonesia, Norway, Romania, South Africa and the United Kingdom. It contains modest disarmament proposals . Observers report that this would make more progress if one of its members, the UK, were willing to reduce its dependence on nuclear weapons.

Disarmament negotiations, however, have a low priority. Mike Gapes MP recently asked the Prime Minister whether he remains committed to public consultation on Trident renewal. and if he "will make renewed efforts to secure international negotiations as called for under article VI of the non-proliferation treaty?". The reply avoided any commitment to negotiations. He constantly emphasises the right to renew Trident but says nothing about negotiations. Would UK diplomats be better able to provide leadership in Good Faith negotiations if a policy of "constructive non-renewal", outlined above, were to be adopted?

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More detailed information can be obtained from "The United Kingdom’s Nuclear Deterrent: Current and Future Issues of Legality", Philippe Sands & Helen Law, Matrix Chambers, 13 November 2006, commissioned by Greenpeace