World Court Project UK
The Public Conscience in Action
1
Trident Replacement and the Law
In November 2009 a small party visited the Ministry of Defence to talk to Bill Rammell, the Minister of State. We were concerned with the long series of unsatisfactory replies from officials to letters from concerned citizens. The Minister undertook to review their policies about this and we shall now have a yearly audit of correspondence. One important outcome was a visit to two of the Ministry’s legal officers on 5 March 2010. As a basis for this World Court Project UK prepared a briefing on the legality of Trident and its renewal purely from the point of view of International Humanitarian Law which we have asked the officials to consider. We have reproduced the briefing in full here.
In 1996 the International Court of Justice delivered an Advisory Opinion which confirmed that the use, or threat of use, of nuclear weapons is subject to the laws of armed conflict, and rejected the argument that such use would necessarily be unlawful. The threshold for the legitimate use of nuclear weapons is clearly a high one. We would only consider using nuclear weapons in self-defence (including the defence of our NATO allies), and even then only in extreme circumstances. The legality of any such use would depend upon the circumstances and the application of the general rules of international law, including those regulating the use of force and the conduct of hostilities.
From the point of view of a citizen concerned with IHL, the White Paper is not very helpful. It pre-empts discussion of the issues by stating that the legality of use could only be assessed in an actual situation when they might be used. It follows that legal considerations can be dismissed as “hypothetical”. We have been assured in letters from the Ministry of Defence over several years that the UK would never use nuclear weapons unlawfully. This is assertion, not argument.
The infrastructure and the contingency plans for the use of British nuclear weapons exist in the present, not in some hypothetical future. The same is true of the legal assessment for their use which the Ministry must have made.
The World Court Project Argument
World Court Project’s position is that we cannot imagine any plausible scenario in which Trident, or its successor, could be used with any certainty that it would comply with the principles of International Humanitarian Law.
To ensure that this argument is secure and that it addresses the United Kingdom's view of the legality of the use of nuclear weapons, we must examine the sources.
On 4 December 2006 the Government published its White Paper on "The Future of the United Kingdom's Nuclear Deterrent". This announced its decision to replace the current Trident-carrying Vanguard-class submarines with new ballistic missile submarines. It remains to be seen which warheads will be deployed on whatever replaces Trident, what its yield would be and its likely effects.
This is what the White Paper has to say on the UK's obligations regarding nuclear weapons under international humanitarian law: (IHL) (Para 2-11).