CentreForum Trident Report

(Shameless self promotion, I know... deal with it!)

Forgive my lack of posting - I've been totally consumed by getting CentreForum Trident paper finished. And now it is - you can get it here - and there's been lots of interesting media coverage. I'm deeply indebted to many people - the acknowledgements are there for a reason - but the one I most liked was from the UK communist Morning Star; only the comrades know the truth. (NB Irony Alert!) We also made the wonderful ArmsControlWonk - with thanks to Dr. Jeffrey Lewis.

Normal service will be shortly be resumed...

Strategic Thinking on Trident Part II

 

(The Muppets' take on SDSR. As opposed to the take of the muppets who actually did SDSR.)

I was reflecting on Trident with a friend the other day, and unusually, we agreed on something: that the key questions are all about prioritization and the UK's role in the world, with the international legal questions playing a constructive but not definitive role. Indeed, dear reader(s)*, I (sadly) accept that the UK will attempt to finesse any argument on NPT Art VI based on whatever the Government decides it wants to do - though I broadly accept Daniel Joyner's argument on Art VI, and specifically Christine Chinkin's 2005 Opinion on the UK's obligations under the NPT, and that replacing Trident would be inconsistent with the UK's NPT obligations.**

The question my friend and I sparred over was whether there was a case for Trident replacement based on the uncertainty of the world situation, and the possibility / probability of further proliferation of nuclear arms; specifically, should Iran go nuclear, would this prompt Saudi acquisition of nuclear capability as Sir Malcolm Rifkind MP suggests, leading to the nuclearisation of the rest of the Middle East? 

(DF-21C. Presumably Saudi ones at least get a different paint scheme.)

I am the first to agree that there is little to be gained in terms of regional security by the proliferation of atomic weapons to Iran and Saudi Arabia. Indeed, as the Atlantic Magazine points out this week, the insecurity of Pakistan's atomic arsenal is perceived as one of the three most serious national security threats to the US; the notion of Saudi buying an atomic capability from Pakistan (or more implausibly, Israel) to mount on its recently acquired Chinese Dong-Feng 21 (CSS-5) MRBMs is plausible and worrying. But the should the expectation that Iranian nuclearisation and Saudi response mean that the UK should go ahead and replace Trident? 

In a word, "No".

Why?

The rationale for an independent UK nuclear capability has historically been based around the perceived need for a second-decision making pole in a superpower exchange: bluntly, would - when push came to shove - the US initiate a tactical / strategic nuclear exchange which would result in the destruction of the American homeland to respond to a conventional Warsaw Pact invasion of Western Europe? In case the answer was "no" - or "possibly no" - then the case for a British (and French) nuclear force that could inflict enough damage on the USSR to deter the Soviet Union from trying it on - the fabled "Moscow Criterion" - was intellectually defensible. 

However, it was only required because the US could have been subject to nuclear blackmail - something that none countries of concern (Iran, Pakistan, North Korea) have demonstrated. And it is instructive to see how far from this position these countries are: the closest would be North Korea if it were able to deploy a reliable Taepo-Dong 2 ICBM force with which it could hit the US west coast - which is about a million miles from the current position of two public test flights that ended in failure, and no evidence that the required small (under 500kg) nuclear warhead exists in North Korea. If Pakistan can produce the Tamiur ICBM (yet to be tested, much less deployed), the reported 7000km design range does not bring the US within range - see below:

(OPAB is the ICAO code for Abbotabad - Osama bin Laden's last home town.

7000km is the lighter area - excluding all of the USA.)

As such, Tamiur poses no threat to the US and therefore there would be no cost to the US in responding to (the currently - and for the foreseeable future - technically impossible) proposition of a Pakistani nuclear ICBM attack on the UK. Consequently, the fear of nuclear blackmail leading to strategic decoupling of US from NATO from a Tamiur-style ICBM is simply non-existent. (It is accepted that Pakistan could put an atomic weapon in a shipping container and deliver to target on a truck - but unless you're prepared to retaliate on suspicion of the source, Trident is no use to you.)

It is also hard to see that the US/NATO gains much from UK Continuous At-Sea Deterrence (CASD) given the very limited number of warheads that UK Trident now carries. Indeed, the gang over at Arms Control Wonk argue persuasively that even if the US defence cuts from the failure of the Budgetary Super Committee disproportionately fell on the nuclear forces -  leading to the removal of a land-based ICBM and cutting SSBN(X) Trident submarine replacement to 10 boats from 12 - then the US could still configure its forces to max-out the New START limits. With 1550 warheads, it's hard to see what difference 48 UK CASD warheads makes to the decision-making of, say, North Korea or Pakistan now or in the next 20 years.

It is on this basis that I'm coming to the position that the UK gains very little in security terms from retaining Trident; it does however cost at least £30bn that could make a significance difference to the UK's conventional forces, which, as we've discussed ad nauseam here is actually what could make a significant difference to the UK - and to NATO and the UK's non-NATO partners. Moreover, until the UK brings the new aircraft carriers into service - preferably with some aircraft to fly off them - UK conventional long-range short-notice conventional force projection is limited to two cruise missile systems: the RN's with BGM-109 Tomahawk from its attack submarines (SSNs) and RAF Tornados with Storm Shadow. Both systems are excellent and provide complementary capabilities. Indeed, HMS ASTUTE recently completed the first of class firings of Tomahawk in the USA.

As good as these systems are, there are clear limitations - Storm Shadow is comparatively short-ranged (reportedly under 300nm) meaning that some credible target sets will require the Tornados to overfly defended territory with attendant greater risks, and will in any event likely require local basing rights for the Tornado launch aircraft. Tomahawk is long range (more than 1000nm) but the RN is suffering from an acute lack of SSNs with the older Swiftsure-class boats now retired, and the first of the Trafalgar-class also struck without the replacement Astute-class SSNs ready to replace them. Moreover, the Trafalgar-class's maximum warload of 30 torpedoes and Tomahawks means that the total number of missiles is actually available against any target set is likely to be less than this. And though stealthy, a submarine can only be in one place at once.

(USS Ohio undergoing SSBN to SSGN conversion)

Decomissioning Trident could address both of these problems. As part of the 1992 START II Treaty, the US Navy would have to reduce its total SSBN fleet to 14. However, instead of scrapping them, it converted four of its 18 Ohio-class SSBNs to carry up to 154 Tomahawks instead of Trident missiles. The result is an impressively balanced, stealthy, strike platform, which provides far more relevant capability to today's - and tomorrow's - conflicts than the Trident missiles formerly carried. Better still for the UK, given that the UK's Vanguard-class SSBNs have the same missile compartment design - though mounting 16 rather than 24 tubes - conversion to Tomahawk carriage should benefit from the considerable work already completed by the US Navy. A full-up Vanguard-class SSGN could carry 106 Tomahawks - more than three times the theoretical maximum number on a Trafalgar-class.

SSGN conversion and already anticipated life-extension to the Vanguard-class would allow the UK to have a deployable, long-range conventional precision strike platform through to the full operational capability of the Queen Elizabeth-class aircraft carriers in the mid-2020s. Food for thought!

* As per ES, it is essential to provide grammatical certainty

** This raises the interesting question of what would happen if the Finance Act which provided funding for Trident were the subject of a Judicial Review....

NPT Article VI

(IAEA, guardian and enforcer of the much sinned-against NPT)

Well, the good news is that the trial is over, and normal service is being resumed; the present status flag will move from Vermont, but I expect that it will be back reasonably soon.

As I mentioned a week or so ago, some new work is being kicked off on the British replacement of Trident, with an initial focus on the legal issues surrounding the strange case of the extra comma. Let's pick up the analysis of the Nuclear Non-Proliferation Treaty (NPT) Article VI from where we left off - looking at Daniel Joyner's new book "Interpreting the Nuclear Non-Proliferation Treaty". Joyner's book came in for some reasonably trenchant criticism, which in my view makes it all the more interesting.

It is.

Joyner's argument is beguilingly based on the Vienna Convention on the Law of Treaties (VCLT) - the Treaty that governs how to interpret Treaties. His (altogether unremarkable) conclusion is that a straight reading of the NPT and it's negotiating history is that as a document it takes the form of three pillars - non-proliferation (Articles I, II and III), peaceful use of nuclear energy (Articles IV and V) and disarmament (Article VI). So far, so conventional. What is more radical is the proposition that the NPT was balanced between these pillars, and that Article VI is just as important as Articles I-III. Joyner's most radical work is in his interpretation of what Article VI actually means (it's that pesky comma again).

But that comes later. Joyner's starting point is the nature of the NPT itself - a contractual rather than merely law-making  treaty. In this, Joyner comes to the conclusion that it is the contractual nature of the NPT that provides a key insight into its interpretation; that in making the treaty contractual on a range of differing obligations, it becomes clearer that the Nuclear Weapons States (NWS) owe disarmament obligations to the Non-Nuclear Weapons States (NNWS) in return for the NNWS not pursing their own nuclear weapons programmes (and in the process, locking in their strategic disadvantage / inferiority).

Article VI

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.

Joyner goes on to make a strong case that Art VI commitments are not, pace the Bush Administration's Christopher Ford, merely a commitment to pursue negotiations on nuclear disarmament, but that the good faith test pushes things on to a requirement to conclude a nuclear disarmament treaty separately to the general and complete disarmament treaty that is also envisaged in the NPT.

This view also takes the state practice of the NWS should - it would appear on the basis of self-interest - to be weighed against that of the NNWS, and largely discounted because of the self-interest inherent in their position. I don't think that it's possible to go this far. An with respect, I don't see how the the ICJ's Advisory Opinion in the 1996 Nuclear Weapons Case from paragraph 99 onwards can conclude that

"... the legal import of that obligation goes beyond that of a mere obligation of conduct ; the obligation involved here is an obligation to achieve a precise result - nuclear disarmament in all its aspects - by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith."
Inasmuch as if this was the construction that the drafters had intended, then they could simply have drafted Art VI thus:

Article VI

Each of the Parties to the Treaty agrees to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.

The point is that they didn't. Much better, I think is the 2005 Joint Opinion by Professor Christine Chinkin at LSE and Rabinder Singh QC, formerly of Matrix Chambers, who note in paragraph 69 that 

69. The Treaty obligation is thus not to disarm as such, but a positive obligation to pursue in good faith negotiations towards these ends, and to bring them to a conclusion. Good faith is the legal requirement for the process of carrying out of an existing obligation.... 

leading them to conclude in paragraph 74: 

74. Enhancing nuclear weapons systems, possibly without going through parliamentary processes, is, in our view, not conducive to entering into negotiations for disarmament as required by the NPT, article VI and evinces no intention to 'bring to a conclusion negotiations leading to nuclear disarmament in all its aspects'. It is difficult to see how unilateral (or bilateral) action that pre-empts any possibility of an outcome of disarmament can be defined as pursuing negotiations in good faith and to bring them to a conclusion and is, in our view, thereby in violation of the NPT, article VI obligation. 

This instinctively feels like the best balance of the difficult negotiating process and subsequent history of the NPT. And it would make a UK Trident replacement a violation of the NPT, and with it a violation of international law.

Interesting times!

The strange case of the extra comma

 

(Commas are important. And box two contains a chameleon; do keep up at the back.)

Grammar? Oh dear.

At the risk of dredging up bad memories for an entire generation, (myself included), I'm sorry to confirm that our 4th-grade teachers were correct: grammar matters. And it is especially important to lawyers when it comes to interpreting legislation and Treaties. For international law, the sacred text in interpreting treaties is itself a Treaty - the 1969 Vienna Convention on the Law of Treaties (VCLT) which came into force in 1980.

The grammatical challenge du jour is with the 1968 Nuclear Non-Proliferation Treaty (NPT). NPT Article VI reads:

"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."

This is a very long sentence. With a single comma.

It could be interpreted in a couple of ways:

First, it could mean that State Parties are are obliged to pursue good faith negotiations on ceasing the nuclear arms race, and nuclear disarmament as well as pursing a treaty on general disarmament under strict and effective international controls.

Second, it could mean that the State Parties are obliged to pursue good faith negotiations on ceasing the nuclear arms race, and nuclear disarmament within the context of a treaty on general disarmament under strict and effective international controls;

Grammatically, the first interpretation makes more sense than the second, because the comma separates the first clause

"negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament,"

from the second

"and on a treaty on general and complete disarmament under strict and effective international control"

making it clear that the two are separate notions.

This construction would mean that the Nuclear Weapons States (NWS) were obliged to disarm independent of a treaty on general disarmament. Under this understanding, it would hard to argue that spending £30bn - £100bn between now and 2042 on a replacement for Trident would qualify as "nuclear disarmament", and that as such, such a purchase would be in direct contravention to the UK's international obligations, and would therefore be illegal as a matter of British law.

Unsurprisingly, perhaps, the UK Government favours the second interpretation, tying as it does nuclear disarmament to a future treaty on "general and complete disarmament". As this happy state of affairs is yet to occur (CCW, CWC and BWC notwithstanding) - and the use of the modifier "complete" sets the bar extremely high - so the logic goes, there is no requirement for nuclear disarmament, however desirable this may be. Conveniently, the second formulation does not make it illegal to procure a replacement to the existing UK Trident SLBM system.

(Minimum deterrence looks a lot like maximum deterrence but with fewer missiles.)

But what's interesting is that over the last decade or so, UK Governments have clung to their tortuous grammatical interpretation whilst publicly demonstrating that the UK is making reductions in its nuclear forces (even as they spend £1bn per annum to reinvigorate the AWE Aldermaston nuclear weapons design and production infrastructure). This appears to be an odd halfway house, as it attempts to demonstrate that the UK is moving towards nuclear disarmament whilst retaining what Whitehall describes as a "minimum credible deterrent".* Moreover, to scrub up its disarmament credentials, the UK draws attention to its ratification of the Comprehensive Test Ban Treaty (CTBT), and the fact that irrespective of the stalled Fissile Material Cut-Off Treaty (FMCT), the UK is no longer producing fissile material for military purposes.** 

Indeed, the UK Foreign Office goes so far as to describe the impact of the 2010 Strategic Defence and Security Review (SDSR) thus:

"In this Review the Prime Minister, David Cameron, and Deputy Prime Minister, Nick Clegg, committed the UK to maintaining a credible deterrence by:

• reducing the number of warheads onboard each submarine from 48 to 40
• reducing our requirement for operationally available warheads from fewer than 160 to no more than 120 
• reducing our overall nuclear weapon stockpile to no more than 180 
•  reducing the number of operational missiles on each submarine

These reductions illustrate that whilst the UK believes in maintaining a minimum credible deterrent this is kept constantly under review and is fully in line with our international obligations under the Nuclear Non-Proliferation Treaty."

But it is only in line with the UK's "international obligations under the Nuclear Non-Proliferation Treaty" if the second, grammatically tortuous, interpretation of NPT Art VI is accepted. 

So who is right? And does it matter?

On which interpretation is correct, I'm not sure yet. But it certainly matters, as if the first interpretation is correct, then the UK Government could find themselves explaining a breach of their international obligations. Against this backdrop, I'm very much looking forward to reading Daniel Joyner's new book, especially after some of the critical reviews. I'll write again when I've read it and reflected.

* As mentioned before this blog does not accept the bald assertion that the UK Trident system currently deters anyone or anything, and therefore doesn't use the term.

** The cynics may observe that it's easy to be in favour of a narrow FMCT if you've got all the highly enriched nuclear fuel that you would ever need on hand, especially if it is already outside of IAEA safeguards.