Disarm Trident! It’s the Law! Lawyers Declaration Faslane 365, 9 January 2007 Faslane 365, organized at the UK nuclear submarine base of that name, applies critical public pressure for good-faith disarmament of Britain’s nuclear weapons. We urge the UK to take a lead because: 1. The UK variant of the US Trident nuclear weapon system is illegal and criminal per se. Contrary to the recent White Paper[1] assertion (2-11) the International Court of Justice (ICJ) made it clear that the fundamental rules and principles of humanitarian law prohibit any threat or use of a weapon of mass destruction such as Trident. 2. Replacement or upgrade of the Trident system breaches the UK’s nuclear disarmament obligation in Article VI of the Nuclear Non-Proliferation Treaty; and 3. Legal methods exist for “unequivocal undertakings” to eliminate nuclear weapons, instead of perpetuating the lawless “security policy” called a “credible nuclear deterrent” (4-1) that “pose[s] a uniquely terrible threat” (3-3) to “deter threats anywhere in the world” (4-4). [2] Facts: 1. The heat, blast and radiation of any nuclear strike planned or executed by the UK Trident system are known and thus intended to cause immediately lethal and long-term carcinogenic, mutagenic and teratogenic effects on human beings and other life forms. 2. The Blair government recommends building three new Trident-armed nuclear-powered ballistic missile submarines (SSBNs) to replace the current four, each capable of carrying up to 16 of the 58 US supplied Trident II D5 submarine launched ballistic missiles (SLBMs). One UK submarine on patrol at any given time carries 48 operational 100 kiloton warheads, each of which threatens to inflict 7 times the heat, blast and radiation death and damage as the Hiroshima bomb (cf. Testimony of Mayor Takashi Hiraoka of Hiroshima and Lijon Eknilang before the ICJ, November 1995). 3. The UK’s plan to reduce its total stockpile of about 200 nuclear warheads to 160 does not alter its practice. 4. A “substrategic role” is also claimed whereby some of the missiles may carry a single warhead for ground burst use against “rogue” state targets, with options for a smaller yield by detonating only its unboosted primary, which would produce a yield of 1 kiloton or less, or a few kilotons if just the boosted primary is detonated,[3] Either way, uncontrollable long term effects from radioactive fallout could be expected downwind. Arguments: 1. The UK’s obligations to conform to the rules and principles of humanitarian law cannot be reconciled with known and understood, indiscriminate and uncontrollable effects of the UK Trident system. Threat or use of such a weapon of mass destruction is categorically prohibited in any circumstance by the preemptory “cardinal” rules and principles of humanitarian law and whether in "offense" or "defense" is a war crime and goes far beyond the bounds of lawful war (UN Charter Arts. 2.4, 51). This body of positive law is summarized most authoritatively by the International Court of Justice (Threat or Use of Nuclear Weapons, ICJ Op, 8 July 1996). The "fundamental" rules of humanitarian law are "intransgressible" the sine qua non of the rule of law itself, and apply universally to all nuclear weapons, to everyone and all countries including the UK and in any circumstance as the UK accepts. The London Charter and the Nuremberg Tribunals made it clear that these rules preempt contrary domestic law. 2. "States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilians and military targets" The UK Trident system’s nuclear weapons are unlawful per se because even if targeted at military objects, their effects are indiscriminate and cannot be controlled [ICJ Op., §s 78 and 34 codified in the Geneva Conventions of 1949 for the Protection of War Victims, 12 Aug 1949 and Protocol I Additional 1977, A 5 1(A)]. 3. “It is prohibited to cause unnecessary suffering to combatants; it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering" [ICJ, §78, codified in the Hague Convention IV of 1907 (Art. 23)]. 4. Since any use of any UK Trident system warhead would cause unnecessary suffering and target civilians indiscriminately in violation of humanitarian law, "a threat to engage in such use would also be contrary to that law" (ICJ Op., §78). A so-called “credible, independent deterrent” using the UK Trident system can only be truthfully characterized as an imminent threat to commit horrific war crimes. 5. Likewise, the UK Trident system is not legitimate for use in retaliation to an attack. As the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia stated, "No circumstances would legitimize an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party" [ Pros. v. Martic, Case No IT-95-11-1 (8 Mar. 1996)]. 6. Use of the UK Trident system would also inevitably cause widespread, long-term and severe damage to our common environment, would contaminate neutral states and violate non-derogable human rights such as the right to life. 7. Plans or contracts to upgrade or replace the current Trident system in order “deter” those who possess nuclear, chemical or biological weapons or some future threat are contrary to the NPT disarmament obligation and the requirements to comply with Article VI disarmament obligations agreed upon in the Final Document of the 2000 NPT Review Conference. 8. Continued reliance on deterrence is antithetical to the good-faith disarmament obligation and counteracts “practical steps for the systematic and progressive efforts to achieve nuclear disarmament”. 9. The US/UK Mutual Defense Agreements and renewal of Ministry of Defense and Atomic Weapons Establishment Management Ltd contract are material breaches of the UK’s commitment under Article VI of the NPT. Performance of and compliance with treaty obligations are required.[4] Public and formal objection, within the UK and elsewhere, by Governments, NGOs, and Parliaments to UK and US non-compliance is especially important to prevent further proliferation and increasing likelihood of use. Solutions: 1. The practical and lawful solution, a current obligation of all States, is "to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control" (ICJ Op., §105(2)F; Nuclear Non-Proliferation Treaty, Art. VI). “The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is to achieve a precise result—nuclear disarmament in all its aspects—by adopting a particular course of conduct, namely the pursuit of negotiations in good faith” (ICJ Op., § 99). 2. Existing Nuclear Weapon Free Zones (NWFZs) provide models for new NWFZs in the Middle East and Europe. 3. Parliamentary Debate on the UK Trident system replacement and upgrade and contract renewal can include testimony of effects of the nuclear system including from Hibakusha, participants in the Indigenous World Uranium Summit, Navajo Nation 30 Nov-2 Dec. 2006, and members of the US Alliance for Nuclear Accountability (ANA). These are the faces of nuclear weapons unjustifiable by “deterrence” or “proliferation.” 4. Review of UK courts’ response to non-violent/symbolic citizen action (Faslane 365 to date, Trident Ploughshares/ LAR, Pit Stop Ploughshares) can lead to discussion of new legal theories and actions involving claims of breach of health, safety, welfare, and fiduciary duties of government with full accounting of costs from mining, testing, contamination, and waste. 5. New questions to the ICJ may clarify lawful steps for fulfilling the good-faith disarmament obligation. 6. The Model Nuclear Weapons Convention lays out a feasible, detailed legal path to complete nuclear disarmament. References [1] “The Future of the United Kingdom’s Nuclear Deterrent” Presented to Parliament by The Sec. of State for Defence and The Sec. of State for Foreign and Commonwealth Affairs By Command of Her Majesty, Dec. 2006. [2] Ibid. [3] NRDC Nuclear Notebook, British Nuclear Forces 2005, The Bulletin of Atomic Scientists Nov/Dec 2005. [4] “UK’s Nuclear Deterrent, Current and Future Issues of Legality”, Philippe Sands, OC, Helen Law, Gray’s Inn, London, 13 Nov. 2006 and “Renewal of US-UK Nuclear Cooperation in Breach on NPT say Eminent Lawyers”, Disarmament Diplomacy, July/Aug. 2004, Rabinder Singh QC & Professor Christine Chinkin, Matrix, London. This Declaration was signed by:- Anabel Dwyer, Board Member of Lawyers' Committee on Nuclear Policy; Commander Rob Green, Rtd; and Peter Weiss, President of Lawyers Committee on Nuclear Policy.