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Non-Proliferation and the Future of UK Nuclear Weapons
Notes for CCADD meeting, December 1, 2004
The Acronym Institute for Disarmament Diplomacy
1.1) The 1968 Treaty on the Nonproliferation of Nuclear Weapons (NPT) entered into force in 1970, with the United Kingdom as one of the three depositary states. This treaty, which 189 states have joined, is frequently described by Britain and other countries as the “cornerstone” of nonproliferation. It rests on a fundamental agreement that in return for all other contracting states renouncing forever the option to develop nuclear weapons for their citizens’ defence or security, the five nuclear weapon states would pursue nuclear disarmament, thereby committing to giving up their nationally-determined nuclear arsenals in order to enhance international security for all and pave the way for general and complete disarmament to be pursued. The rather vague language in the NPT’s Article VI on “cessation of the nuclear arms race at an early date and to nuclear disarmament” was given greater clarity, interpretation and meaning in agreements adopted when the NPT was indefinitely extended in 1995, and subsequently in 2000. These additional agreements now underpin the expectations and context for NPT parties. The NPT’s Seventh Review Conference will be held at the UN in New York on May 2-27, 2005, providing opportunities and risks for preventing the spread of nuclear weapons.
1.2) Britain currently has a nuclear force comprising four Trident submarines each equipped to deliver up to 48 independently targeted warheads (similar to the W-76 US warheads of up to 100 kt.) though only one submarine is usually operationally deployed. Though Trident is capable of carrying more, Britain’s nuclear forces were limited to below 200 warheads by the 1998 Strategic Defence Review, which described this as “the minimum necessary to provide for our security for the foreseeable future.” The December 2003 Defence White Paper, entitled “Delivering Security in a Changed World” states that Britain is “committed to working towards a safer world in which there is no requirement for nuclear weapons”. It then undermines this laudable commitment by reiterating that Trident “is likely to remain a necessary element of our security”. The White Paper notes that decisions on whether to replace Trident are likely to be taken by the next Parliament. Until such a decision is taken, the White Paper insists that “the range of options for maintaining a nuclear deterrent capability is kept open”.
1.3) In the absence of a prohibition treaty, the major applicable instruments of international law relating to nuclear weapons are the NPT, customary law and humanitarian law, which were all deemed relevant by the July 1996 advisory opinion of the International Court of Justice (ICJ) on the use or threat of use of nuclear weapons. The authoritative ICJ opinion was subsequently incorporated into the consensus final document of NPT states parties at the Sixth Review Conference in May 2000, which also agreed a plan of action for nuclear disarmament and non-proliferation, consisting of some 13 specific principles and measures. These included pledges on the comprehensive test ban treaty (CTBT), a fissile materials production ban, further unilateral reductions in nuclear arsenals, verification, diminishing the role and operational status of nuclear weapons, and application of the principles of transparency and irreversibility. Most importantly, the UK government agreed an “unequivocal undertaking by the nuclear weapon states to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament.” Britain has taken credit for playing a major role in the negotiation and adoption of the NPT 2000 Plan of Action on Nuclear Disarmament.
1.4) Five key issues kept recurring at the 2004 NPT Preparatory Committee meeting as states looked towards 2005: noncompliance; implementation; nuclear disarmament; security assurances; and safeguards and verification.
1.5) Everyone expects the 2005 Review Conference to be difficult and divided. Though the prospect of a conflict-ridden conference worries some, others consider the NPT review process to be increasingly irrelevant. While the reciprocal norms and principles inherent in the NPT-based nonproliferation regime appear increasingly vulnerable, US-led initiatives such as the Proliferation Security Initiative (PSI) and UNSC resolution 1540 are intended to strengthen national and international implementation and policing of nonproliferation obligations and policies, with the primary purpose of preventing nonstate actors and aspirant or “rogue” states from getting access to nuclear (and other WMD) materials. Though both initiatives are generally welcomed now, the fact that neither mentions implementing the disarmament obligations of states parties has raised fears among some NNWS that the major powers intend to pursue one-sided anti-proliferation policies while reviving and modernising their own arsenals.
2. Decisions already in hand for continuing to manufacture UK nuclear weapons
2.1) The UK government has recently undertaken ambitious planning to upgrade the Atomic Weapons Establishment (AWE) Aldermaston with, among other things, new laboratories, laser and hydrodynamics facilities. Although the previous contract was not due to expire, a further 25 year contract worth over £5 billion was signed with Aldermaston’s management consortium that includes US arms manufacturers Lockheed Martin and British Nuclear Fuels Ltd (BNFL).
2.2 The AWE plans and decisions indicate that Britain is enhancing its capabilities for sub-critical and inertial confinement fusion testing at Aldermaston and preparing to intensify research and development activities. Such enhancements are not required for the safety of Trident warheads or for decommissioning and would enable existing warheads to be modified. Notwithstanding the enhanced laboratory testing facilities, most experts believe that the MoD would not be confident about deploying a new warhead that had been developed without full testing. Nuclear explosive testing is currently prohibited under the CTBT, which Britain signed in 1996 and ratified together with France in 1998.
2.3) This year HMG also took steps to renew the 1958 Mutual Defence Agreement for Cooperation on the Uses of Atomic Energy for Mutual Defense Purposes (MDA) through December 31, 2014. After being presented to Congress on June 14, 2004, the MDA was renewed by the United States on November 16 without requiring Congressional action. Despite attempts by British MPs to get a parliamentary debate, renewal has probably now been nodded through by Britain as well.
3. Continuing US-UK nuclear cooperation: incompatible with the NPT and UK interests
At the request of the Acronym Institute, BASIC and Peacerights, Rabinder Singh QC and Professor Christine Chinkin of Matrix Chambers provided an assessment of the MDA’s legal position, particularly in relation to the NPT and international legal obligations. Among other things the Matrix assessment concluded that: “It is strongly arguable that the renewal of the Mutual Defence Agreement is in breach of the Nuclear Non-Proliferation Treaty.”[para 2] Singh and Chinkin also argued that the MDA was necessary principally for “improving the UK’s state of training and operational readiness …[and] atomic weapon design, development or fabrication capability” which implied “continuation and indeed enhancement of the nuclear programme, not progress towards its discontinuation” [para 39]. As such, the MDA clearly contravenes the essential object and purposes of the NPT, which enshrines clear obligations to nuclear disarmament. [Discussion and full text of the legal advice can be found at www.acronym.org.uk/dd78]
3.2) The advice, based on consideration of the histories and objectives of the two treaties and their legal relationship, noted several ways in which their aims and purposes were incompatible. The distinguished authors advised that the NPT takes precedence over the frequently-renewed MDA in international law and that bilateral agreements of this kind are “permissible only if they do not affect the enjoyment by other treaty parties of their rights under the multilateral treaty” or if they do not relate directly or conflict with “a provision essential to the effective execution of the object and purposes of the treaty” [para 13].
3.3) Hearing of the Matrix Chambers Advice, Dr Miguel Marín Bosch, former Deputy Foreign Minister of Mexico, who had raised concerns about US-UK nuclear cooperation when he was head of Mexico’s delegation to the NPT Review and Extension Conference in 1995, said: “The MDA is inconsistent with the spirit and letter of the NPT. There should be a full and transparent public debate before the UK government decides to renew it. Perhaps an advisory opinion from the International Court of Justice would help the UK government in its decision.” This point of view is shared by a number of other non-nuclear weapon countries.
3.4) While no-one denies the strategic importance of the Atlantic Alliance, the Iraq war shows the dangers for British security and interests of being unable to pursue our own determination of national and international security or stand aside in the event of mistaken US policies. The MDA and Britain’s nuclear dependence on the United States distort our international relations and make it impossible to forge a more constructive alliance with the United States based on mutual respect and independence, since there will always be a fear that a simplistic or punitive US administration might withhold nuclear weapons cooperation if Britain criticises Washington or takes a different line.
4. Replacing Trident: implications for Article VI of the NPT
4.1) The Matrix Chambers legal opinion asserted that “The importance of Article VI to the objects and purposes of the NPT is shown both by the negotiation history of the NPT and by the reaffirmation of its significance by the 2000 Review Conference. The Review Conference also emphasised that strict observance of the NPT is required, that is observance with both the letter and spirit of its articles.” [para 36] In relation to the specific principles and steps negotiated by states parties and agreed in 1995 and 2000, “A Declaration of a Review Conference such as that adopted by consensus [in 1995 or 2000] would fall within the wording of article 31 (3) (a) [of the Vienna Convention on the Law of Treaties (VCLT)] and is thus an appropriate source of interpretation of the obligations of the NPT.” [para 20]
4.2) In addition to demonstrating a clear intention not to comply with and implement Article VI, any decision to develop a new or further nuclear weapon system as a follow on to Trident would directly violate several of the specific principles and steps agreed in 2000. In particular:
· the “unequivocal undertaking” to eliminate Britain’s nuclear arsenals [Para 15.6];
· the principle of irreversibility [Para 15.5]; and
· all the five steps contained in Para 15.9, which require
Ø “further efforts by the nuclear weapon States to reduce their nuclear arsenals unilaterally”,
Ø “increased transparency by the nuclear weapon States”,
Ø “the further reduction of non-strategic nuclear weapons, based on unilateral initiatives and as an integral part of the nuclear arms reduction and disarmament process”,
Ø “concrete agreed measures to further reduce the operational status of nuclear weapons systems”,
Ø “a diminishing role for nuclear weapons in security policies to minimise the risk that these weapons ever be used and to facilitate the process of their total elimination”, and
Ø “the engagement as soon as appropriate of all the nuclear weapon States in the process leading to the total elimination of their nuclear weapons”.
The only area in which the UK can claim to have made exemplary progress since 2000 is in verification [15.13], “The further development of the verification capabilities that will be required to provide assurance of compliance with nuclear disarmament agreements for the achievement and maintenance of a nuclear weapon free world.” However, the future of the verification project is in doubt, as priority is being reasserted for nuclear weapons research and development.
5. New nuclear weapons and testing
5.1 The necessity to ban nuclear testing has been inextricably entwined with the NPT from the beginning and was enshrined in the preamble. Most importantly, conclusion and entry into force of the CTBT were the first and foremost disarmament obligations undertaken at the NPT review conferences of 1995 and 2000. The CTBT was concluded in 1996 and by October 2004 had been signed by 172 states and ratified by 119. Despite such a high level of support, it cannot yet enter into force because the stringent provisions of Article XIV of the treaty make entry into force conditional on the signature and ratification of 44 named states with significant nuclear capabilities. Of these 44, 33 have signed and ratified. The most significant hold-outs are the United States, which rejected ratification in 1999; China, which has signed but not ratified, though it keeps promising to do so; India, Pakistan and North Korea (none of which have even signed).As long as the CTBT holds, it prevents underground testing for new or significantly more sophisticated nuclear weapons designs.
5.2 Analysts close to Washington warn that the second term presidency of George W. Bush could place the CTBT and the US testing moratorium at risk. Although Congress has so far refused budget funding for the development and testing of new weapons, the Bush administration has introduced security strategies and nuclear policies that blur the demarcation between nuclear and conventional forces. Arguments for new nuclear weapons and capabilities are being deliberately linked to two popular themes: terrorism (robust nuclear earth penetrators - bunker busters - and mini-nukes); and missile defence (possible nuclear interceptors). Moreover, as a consequence of Bush-administration ideology and capability-based planning doctrine, confidence in the CTB is being severely eroded. The United States has boycotted two high level CTBT meetings and arbitrarily withheld some of its funding for the CTBTO and verification system. Since 2001, US delegations have repeatedly opposed or voted against the CTBT in NPT or UN meetings. In 2001-2, senior officials at the Departments of Defense, Energy, State and the National Security Council seriously reviewed whether President Bush could or should renounce Clinton’s signature on the CTBT, and there are concerns that pressure to kill the treaty beyond doubt could intensify in 2005. Given the importance of the test ban to NNWS parties to the NPT, if the CTBT were allowed to collapse – and particularly if nuclear testing were resumed – the NPT would be irreparably discredited and weakened.
6.1) While there is arguably no direct or causal link between Britain’s nuclear policies and the calculations and decisions of other nuclear weapon possessors or aspirants, the decision on replacing Trident potentially puts the UK in a pivotal position to give positive or negative signals about the future salience of nuclear weapons for defence or political gains. By indicating that Britain expected to rely on nuclear weapons for the next 30 years, any decision to develop a nuclear replacement for Trident would undermine nonproliferation efforts and encourage others to hedge their bets. On the other hand, without over-exaggerating the international influence of UK decision-making, a clear statement on the opening day of the NPT Review Conference that Britain upheld all its NPT obligations and commitments and would not seek a nuclear follow-on for Trident would give a powerful boost to nonproliferation and international efforts to reduce the salience of nuclear weapons.
6.2) Associating proliferation with terrorism deliberately redirects attention away from the disarmament objectives implicit in the wider concept of nonproliferation. The neoconservative preference for military solutions and policing approaches is reflected in the war on Iraq, PSI and the decisions at recent meetings of G-8 heads of state and NATO. Even in UNSCR 1540, treaties and disarmament are only faintly referred to in the preamble. There are two central contradictions to this approach: emphasising the military utility or security value of nuclear weapons defeats nonproliferation; and nuclear weapons are useless in deterring terrorism or other attacks. The attempt to exclude disarmament from nonproliferation efforts flies in the face of past experience and narrows the zone of political, technical and physical options within which effective nonproliferation policies can be developed.
6.3) To re-establish the NPT’s credibility, five connected problems need to be addressed:
· after diminishing during the post cold war 1990s, the salience of nuclear weapons is being dangerously reasserted through the policies of the P-5, the D-3 (India, Israel and Pakistan) and the actions (and international reaction to) nuclear aspirants such as Iran and North Korea;
· key NPT parties are losing confidence in the regime’s ability to represent their interests and reduce their regional and international security threats;
· the NPT review process has not been able to deliver more credible pressure and procedures for full implementation and accountability under the treaty;
· the NPT parties continue to be denied effective mechanisms by which they could exert their collective will when faced with non-compliance or violations; and
· the NWS continue to treat their disarmament obligations as second-class commitments, to be pursued at their own time and pace and only if completely convenient, whereas for most NNWS the promise of nuclear disarmament is a fundamental axiom of nonproliferation and an essential component of their own decision to adhere to the treaty.
· HMG should make clear publicly and in its interactions with the Bush administration that UK commitment to the CTBT is unswerving, and that under no circumstance (including the collapse of the treaty or revival of US testing at Nevada) would Britain ever consider conducting another nuclear test.
· While I argued above for a clear declaration giving up the option of further nuclear forces (just as other NPT parties had to give up their options to develop nuclear weapons for the sake of greater security goals), such a decision may be considered too frightening all at once, particularly in light of this Labour government’s timid relationship with the Bush administration. Instead, HMG could announce before the 2005 Review Conference that it was undertaking a no-holds-barred “strategic security and defence review” in which (unlike in 1997) nuclear policy would not be exempt. The remit would encompass wider concepts of security than addressed in 1997 and, inter alia, analyse the role of nuclear weapons and efficacy of nuclear deterrence in the post 9/11 security environment, including issues of decommissioning, safety and security of materials, components and facilities. If genuinely independent, serious and thorough, a strategic review of this kind would provide a rational, defensible basis for making the decision on whether to replace Trident.