Yorkshire CND - Leading lawyers say US-UK nuclear collaboration breaches international law

26 July 2004
Leading lawyers say US-UK nuclear collaboration breaches international law
News Advisory from British American Security Information Council,
the Acronym Institute for Disarmament Diplomacy and Peacerights

London - In an authoritative legal opinion released today, Rabinder Singh QC and Professor Christine Chinkin have concluded that "it is strongly arguable that the renewal of the Mutual Defence Agreement" - a special arrangement between the US and Britain for exchanging nuclear information, technology and material - "is in breach of the nuclear Non-Proliferation Treaty".

Their conclusion has potentially far reaching consequences for Britain's nuclear weapons programme, which has been dependent on the Mutual Defence Agreement (MDA) since 1958. Renewing the MDA paves the way for replacing the Trident nuclear weapons system, options for which are already being considered. On June 14, President Bush recommended the amended US text for Congressional consideration, saying "it is in our interest to continue to assist [the United Kingdom] in maintaining a credible nuclear force". In conflict with this is the "unequivocal undertaking" given by the nuclear weapon states in 2000 "to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament", in accordance with their NPT obligations.

The British government has ignored requests from MPs for a parliamentary debate, appearing anxious to rush through the renewal of this bilateral nuclear collaboration accord on the quiet, just before the parliamentary recess.

Following questions raised in parliament and at recent NPT meetings, and in response to a request from the British American Security Information Council, Peacerights, and the Acronym Institute for Disarmament Diplomacy, the 22-page legal advice provided by Mr Singh and Professor Chinkin, both of Matrix Chambers, considers the histories and objectives of the two treaties and their legal relationship and notes several ways in which the two treaties' aims and purposes are incompatible.

It advises that the NPT, which is the fundamental international legal instrument covering nuclear weapons, binding on 189 states, takes precedence over the MDA under international law. The MDA is directed towards "improving the UK's state of training and operational readiness ... [and] atomic weapon design, development or fabrication capability". But Article I of the NPT forbids the transfer of nuclear weapons or devices, and Article VI of the NPT requires all parties to pursue nuclear disarmament. Renewal of the MDA, intended to continue and enhance Britain's nuclear programme, would hence breach the NPT.

Dr Miguel Marin Bosch, former Deputy Foreign Minister of Mexico and 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."

Nigel Chamberlain of BASIC said: "In view of this fundamental contradiction between the two treaties, the UK will be breaching nuclear nonproliferation obligations by renewing these nuclear collaboration arrangements with the United States. Parliament is now in recess and despite requests from over 40 MPs for a parliamentary debate, the government seems determined to force the MDA renewal through as quickly and quietly as possible without any accountability."

Rebecca Johnson, executive director of the Acronym Institute for Disarmament Diplomacy said: "When two treaties are incompatible like this, one has to give way. It is inconceivable that Britain would join North Korea in pulling out of the NPT as that would seriously jeopardise our security. The nuclear collaboration with the United States has to stop, and both countries need to do more to comply fully with the NPT."

British American Security Information Council
(Nigel Chamberlain) 020 7324 4684
The Acronym Institute for Disarmament Diplomacy
(Rebecca Johnson) 0207 503 8857/077333 60955
Peacerights
(Carol Naughton) 0121 2449965

The full text of the legal opinion can be found at: http://www.basicint.org/nuclear/MDAlegal.htm
BASIC's special report on the MDA can be found at: http://www.basicint.org/nuclear/MDAReport.pdf

Notes and other links:

The original MDA, entitled "Agreement Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland for Cooperation on the Uses of Atomic Energy for Mutual Defense Purposes", was agreed on July 3, 1958. The last renewal was in 1994, for ten years, so both governments are pushing for a further 10 year extension before the end of 2004.
The text is available at http://www.basicint.org/nuclear/NPT/2004pc/1958MDA.htm or www.acronym.org.uk/dd77

The 1968 Treaty on the Non-Proliferation of Nuclear Weapons entered into force in 1970. The next Review Conference of states parties will be held in New York, May 2-27, 2005. For the NPT text and reports on the Review Conferences and outcomes of 1995 and 2000, see http://www.basicint.org/nuclear/NPT/main.htm and http://www.acronym.org.uk/npt/index.htm

George W. Bush, Message to the Congress of the United States, and Memorandum for the Secretary of Defense and the Secretary of Energy on Proposed Amendment to the United States/United Kingdom Agreement for Cooperation on the Use of Atomic Energy for Mutual Defense Purposes, June 14, 2004, available at http://www.whitehouse.gov/news/releases/2004/06/20040614-16.html. The US Congress, which has adjourned until September 7, has 60 session days to consider the MDA.

By the time the UK parliament recessed on July 22, 43 MPs had signed Early Day Motion (EDM) 1407, which raised concern that the MDA could undermine the NPT and called for a parliamentary debate on the MDA in advance of its possible ratification. http://edm.ais.co.uk/weblink/html/motion.html/ref=1407

Relevant Selected Points from the Joint Legal Advice:

"In our view, for the reasons set out below, it is strongly arguable that the renewal of the MDA is in breach of the NPT." (para 2)

The subject matter of the NPT and MDA are relevant to each other. Since the MDA has been amended and renewed several times since 1958, most recently in 1994, it becomes a treaty later in time to the NPT. Two or more parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone. "Such agreements inter se are therefore permissible only if they do not affect the enjoyment by other treaty parties of their rights under the multilateral treaty, or it does not relate to a provision essential to the effective execution of the object and purposes of the treaty." (para 13)

"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)

"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 addition, in 1996 the ICJ [International Court of Justice] in an Advisory Opinion unanimously asserted that 'There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmmaent in all its aspects under strict and effective control.'" (para 37)

"Assertions about the importance of renewal of the MDA are not in conformity with the obligations of Article VI and the commitments made in the 2000 Review Conference. The MDA itself, as amended 1994, article 3 bis is directed towards 'improving the UK's state of training and operational readiness .[and] atomic weapon design, development or fabrication capability'. These both imply continuation and indeed enhancement of the nuclear programme, not progress towards its discontinuation". (para 39)

".determination of material breach of a multilateral treaty 'entitles (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State, or (ii) as between all the parties.' However performance and compliance are what is required, not termination of the [NPT] either as between all parties or between other parties and the UK." (para 49)

For further information, contact:
Rebecca Johnson (The Acronym Institute for Disarmament Diplomacy)
0207 503 8857/077333 60955;
Carol Naughton (Peacerights) 0121 2449965;
Nigel Chamberlain (BASIC) 020 7324 4684.