Parliamentary Liaison - Replacement for Trident - November 2005

Briefing on the replacement of Trident

There are two principal positions within the Churches today regarding warfare, the pacifist position and that of the 'Just War'. While a pacifist position would oppose the use of armed force in all circumstances, criteria for a 'Just war' includes the requirement that the use of force is both proportionate and discriminates between military and civilians. There is a growing awareness that the indiscriminate destruction involved in the use of nuclear weapons cannot be reconciled with either tradition. Since the end of the cold war it has become increasingly difficult to argue coherently that non-nuclear powers should not develop nuclear weapons while nuclear powers not only retain but also renew their own.

The Churches have a clear responsibility to inform public conscience on this important issue.     

The proposal that a decision to develop a new generation of nuclear weapons systems could be taken without a decision in Parliament illustrates a very dangerous lack of accountability at the heart of our Government. The Government has neither explained why it needs such weapons, nor done anything to encourage an open and public debate. It has even suggested that such a decision could be made without a vote in the House of Commons. A decision to replace Trident would be particularly serious for the following reasons:

• The Non Proliferation Treaty and its 2000 Review Process represented an agreement between states who have nuclear weapons and those that don't. Nuclear Weapons States agree to work towards nuclear disarmament in return for those states not having nuclear weapons not developing them. A replacement for Trident would undermine the spirit of that agreement.   
• The decision would negate the agreement on which the Labour Party was elected in 1997 that while the UK remained committed to maintaining Trident it would, at the same time, work towards the global elimination of nuclear weapons.  
• The Advisory Opinion of the International Court of Justice on the use or threatened use of nuclear weapons (July 1996), while equivocating on the issue of the legality of nuclear weapons, lays an obligation on nuclear weapons states to work in good faith towards nuclear disarmament. A replacement to Trident would undermine this obligation of good faith. 
• The Government currently has no electoral mandate to develop a new nuclear weapons system or to supply the resources necessary for research.  
• A replacement for Trident would divert resources from other priorities identified in the U.K. Government's Strategic Defence Review. Well-targeted international aid may be a more effective and ethical way of maintaining UK influence and supporting the prevention of violent conflict.  

These political reasons are supported by increasingly persuasive legal arguments that a preparedness to use nuclear weapons would itself be a breach of International Humanitarian Law.

• The use of Trident could not comply with the requirement in International Humanitarian Law of discrimination[1](non-combatant immunity).  
• The use of Trident could never be proportionate i.e. the ends intended could never justify the means used. Proportionality is a forward-looking test examining both intended and probable unintended consequences. It needs to be applied at every stage of an armed conflict. It has to be applied both in terms of resort to war (jus ad bellum) and to the use of weapons once a war has begun (jus in bello).  
• The Martens Clause[2] is authority for treating the principles of humanity and the dictates of collective conscience as active principles of international law.  
• The use of nuclear weapons would be a breach of customary international law developed since 1945. A rule that has its origins in the aftermath of Hiroshima (in the Shimoda Case the legality of the attack was taken as a preliminary issue) was shaped by the nascent opinio juris (authoritative legal opinion backed by practice) of a majority of states in the 1961 Declaration on the Prohibition on the Use of Nuclear Weapons where the majority of states (55-20) considered nuclear weapons unlawful. This rule becomes increasingly compelling with the passing of time.  
• When the issue came before the ICJ in 1996, judicial realism dictated that the court could not rule that the practice of the permanent members of the Security Council was itself unlawful. However the advisory opinion, while equivocating on the question of customary international law, offers no support for the legality of nuclear weapons. The UK Judge Rosalind Higgins takes her colleagues to task for failing to set out the reasoning behind their enigmatic verdict. In her paragraph 24 she points out that weapons, which would be incapable of being targeted on military objectives alone, would be intrinsically unlawful to use regardless of proportionality or collateral damage.  

The proposed replacement for Trident is an issue one on which it is too important to remain silent. We ask for the Church to affirm its moral leadership in opposing the development of any new nuclear weapons system. The nuclear decisions made by Government have too often been made surreptitiously, without any proper public accountability or debate. We press for the Government to explain why it considers such a system is necessary, to encourage an open public debate, and to submit any decision that is made to an unwhipped vote on this matter of conscience.

Michael Bartlet 
November 7^th 2005

[1]I.e the capacity to discriminate between "legitimate" military and illegitimate civilian targets. 

[2]I.e the clause contained in the preamble to the Hague Regulations of 1907 concerning the Laws and Customs of War on Land, and later included in the four Geneva Conventions (Art. 63 of the First, Art. 62 of the Second, Art. 142 of the Third, and Art. 158 of the Fourth).