ISSUE AREAS:

A Citizens' Inquiry Into the Legality of Trident

'The MDA and the NPT: A questionable relationship'

Presentation by Nigel Chamberlain, 7 November 2004

Thank you for this opportunity to 'air' our concerns about the activities conducted under the Mutual Defence Agreement and its implications for the Non-Proliferation Treaty.

I will start with a quote by Admiral William Crowe, a former US Ambassador to London under President Clinton about the 'special relationship':

I have always described the relationship like an iceberg, in that there is a small tip of it sticking out, but beneath the water there is quite a bit of everyday business that goes on between our two governments in a fashion that's unprecedented in the world.

UK-US nuclear weapons collaboration is almost entirely submerged. Lorna Arnold, in her book 'Britain and the H-Bomb', provides an historical account of the initial benefits to Britain's nuclear weapons research and development following the signing of the MDA. She recounts how two leading Aldermaston scientists, Plowden and Penny, told Prime Minister Macmillan that Britain would soon be in a position to build up a stock of kiloton and megaton bombs of advanced design, thanks to knowledge obtained from the United States. It was stressed that the US had agreed to the MDA on the understanding that the UK would continue to invest in scientific research and development work in order to maintain the special relationship on defence collaboration, or have such access denied in the future.

This is substantiated by official AWE documents and on their website. Apparently, British development of the hydrogen bomb prompted the United States to sign the MDA in 1958 which "ushered in a series of technical exchanges which have been a cornerstone of life for our nuclear weapons community ever since". The AWE website describes this cooperation as follows:

Based around a series of Joint Working Groups, each concentrating on a specific area of physics, engineering and material science, Aldermaston's specialists have for more than forty years been able to exchange and develop ideas with their counterparts from the American Laboratories to the benefit of the nuclear weapons programme on both sides of the Atlantic.

AWE admits to the significance of the MDA when they say it has been a "cornerstone of life for our British nuclear weapon community ever since". Somewhat ironically, the NPT is usually referred to as 'the cornerstone of arms control and reduction treaties', but the two edifices are at opposite ends of the non-proliferation architecture.

Our research led us to the understanding that the US-UK 'special nuclear relationship' is more a two-way exchange, if unequal, than a straight one-way dependency.

Clearly, the MDA predates the NPT but does it have precedence? What does it permit?

• it permits the transfer of nuclear warhead components, fissile material (plutonium and highly enriched uranium) and tritium;
• it permits the transfer of delivery systems (missiles) and
• it permits the transfer of submarine design specifications, nuclear propulsion plants and HEU to fuel them which amount to aid the building of the platforms.

Thus all three aspects of a deployable nuclear weapon - warhead, deliver system and platform - are put together, collaboratively, under the auspices of the MDA.

In fact, it would be much easier to say what is not permitted under the MDA - the transfer of a complete nuclear warhead.

We have heard this weekend that the amendments to the MDA since the addition of Article III (bis) in 1959, have often amounted to little more than a change of date for a further 10 year period. In reality, the MDA is so open-ended that it can accommodate any needed changes to existing arrangements without having to delineate them.

This is why we suggested that the MDA was a material breach of Article 1 of the NPT which obliges Nuclear Weapons States (NWS) NOT to transfer their nuclear weapons to other states "whatsoever" and "directly or indirectly". Previously we had stuck to the suggestion that these MDA transfers were merely a breach of the 'spirit' of the NPT, thus avoiding an accusation of illegality (i.e. a breach of the 'letter' of the NPT). The fundamental purpose of the NPT is set out in the Preamble: "The prevention of the wider dissemination of nuclear weapons".

But we ran into some unexpected obstacles, other than presented by HMG and the Administration. My counterpart in our Washington office, Matt Martin, spoke to several people who told him that the MDA was legally constituted and there was no case to answer. Anyway, the Brits were a good ally and trusted in Washington. In an exchange of e-mails one senior arms control specialist told a journalist I was working with that if the BASIC report "suggests that the 1958 US-UK agreement violated the NPT, it is wrong" and:

I was very much involved in the negotiations that produced Article I of the NPT. We were aware of various agreements for deploying US nuclear weapons in the territory of NATO allies, of the separate arrangements with the UK, and of then current proposals for a NATO Multilateral Force (MLF). The language we finally agreed on with the Soviets barred an MLF, but did not bar agreements such as those with Germany for deployment of US nuclear weapons in that country under US control, or the arrangements with the UK derived from the 1958 agreement.

More recently, a leading US academic working in this country stated: "I believe that the US/UK nuclear cooperation agreement, being older than the NPT, and being contracted between two NWSs is fully legal - and in the best interests of the world."

These encounters encouraged us to move our research efforts away from Article 1 and towards Article VI - an effort which was supported by the legal opinion of Rabinder Singh QC and Professor Christine Chinkin who concluded that: "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."

BASIC's Special Report was an attempt to make the Executive branch of government accountable to parliament. We failed, partly because parliament declined to take the limited opportunity offered it via the Select Committee procedures.

• The Defence Committee, after showing initial interest, decided not to conduct an inquiry into the MDA renewal.
• The Foreign Affairs Committee said from the outset that the MDA fell within the Defence Committee remit, despite our attempts to suggest that it had treaty implication vis-a-vis the 2005 NPT Review Conference.
• The Government even suggested that they would look favourably upon a request for a parliamentary debate from the Defence Committee, the Foreign Affairs Committee or the Liaison Committee - no such request was forthcoming.
• Our efforts to encourage the Leader of the House to timetable a debate on the MDA renewal met a stone wall.
• Finally our recommendation that the frequent reference to Exemption 1 of the Code of Practice on Access to Government Information, in effect the 'not in the interests of national security' to release defence information, is a clear and unwarranted impediment to transparency and accountability.

The Government delayed ratification of the MDA until 20 July, having indicated to me that they were prepared to do it earlier, just before the summer parliamentary recess two days later.

In summary, the UK has:

• failed to set out a plan or timetable to reduce its nuclear arsenal;
• failed to establish a diminished role for nuclear weapons in its national security policy; and
• actively blocked efforts to provide non-nuclear weapon states with legally binding assurances that they will not be targeted by Trident missiles.

Article VI, the nuclear disarmament component of the NPT, remains a blind spot in the UK Government's field of vision.

The fundamental purpose of the NPT is set out in the Preamble: "The prevention of wider dissemination of nuclear weapons". In reality, this is exactly what the MDA provides - an open-ended arrangement for two named states to 'disseminate' information, technology and materials in their pursuit of more sophisticated nuclear weaponry.

The UK has ratified the MDA, as confirmed by Defence Minister Adam Ingram in response to a PQ put down by Mike Hancock MP:

Mr. Hancock: To ask the Solicitor-General if the Attorney-General will make it his policy to adopt the legal opinion of Rabinder Singh QC and Professor Christine Chinkin regarding the Nuclear Non-Proliferation Treaty in relation to the Mutual Defence Agreement; and if she will make a statement.

Mr. Ingram: I have been asked to reply as the Minister responsible for this issue.

I can confirm that the Government are satisfied that the extension of the Mutual Defence Agreement for a further 10 years is compatible with the UK's obligations under the Nuclear Non-Proliferation Treaty.

There is a long-standing convention, followed by successive Governments, that neither the fact that the Law Officers have advised on a particular matter, nor the substance of any advice they may have given, is publicly disclosed. This is consistent with paragraphs 2 and 4(d) of the Code of Practice on Access to Government Information.

The United States has not yet ratified the MDA as it is required to lie before Congress for 60 sitting days (only 21 before parliament). My BASIC colleague in Washington, Matt Martin, said this in a recent message:

The MDA needs two more days in Congress to meet the 60-day mark, which they will achieve when they come back for the lame duck session, now expected to start November 16th. Following that, the agreement will need to be signed by the executive branch, although that does not need to be the president, and will likely not be accompanied with any fanfare.

Under Article X11 of the MDA, it states:

This Agreement shall enter into force on the date on which each Government shall have received from the other Government written notification that it has complied with all statutory and constitutional requirements for the entry into force of this Agreement.