2006.07.06

A Conference: Freedom from Nuclear Weapons through Legal Acountability and Good Faith

A Conference: Freedom from Nuclear
Weapons
through Legal Accountability and Good Faith *

6 July 2006, The European Parliament, Brussels.

Court Experiences in the UK: A .Presentation by Phil Shiner

Phil Shiner is from the British organization Peace Rights and head of team at Public Interest Lawyers.

I'm going to speak this morning as an UK lawyer with practical experience of trying to litigate issues arising from the UK’s possession of the nuclear weapon system. I’ll be speaking more with my litigation hat on as Public Interest Lawyers, whereas this afternoon I’ll be speaking more with my Peacerights hat on when I’m talking about people’s tribunals.

The experience I’ve had over the last few years involves cases in every court in the UK from The High Court of Appeal to the House of Lords and a case in Strasbourg for Angie Zelter and others. However, those cases have also brought me into contact with arguments arising from other cases, particularly cases for activists who have tried to use the criminal defence of necessity to shield them from the effects of deliberate damage to premises concerned with nuclear weapons. I want to draw out some lessons from that UK experience which I think may be relevant to other jurisdictions.

The first lesson is that in the UK there is no question whatsoever that a court would ever rule on whether the UK’s possession of its nuclear weapon system, Trident, or any decision to replace it, is, or is not, in breach of international law. That is what we know in the UK as the principle of justiciability. The principle says that certain matters are matters of high foreign policy, defence of the realm, and security of the nation. They are not a matter for judge or jury. It’s a simple separation of powers issue. I ought to note for our American friends that the principle of justiciability would be more closely equated with what they would know as the “political question.”

We’re about to make a decision to replace Trident and spend £35-40 billion of UK taxpayers’ money on it rather than on our precious National Health system. If CND or others intend to challenge that decision to replace Trident, they are, in my view, absolutely doomed to fail. Just to give you a quote from the Court of Appeal. This is a case regarding the manufacture of nuclear weapons at Aldermaston. One of our judges puts the principle of justiciability very well and makes it very clear. He says,

“The graver a matter of state and the more widespread its possible effects, the more respect will be given within the framework of the Constitution to the democracy to decide its outcome. The defence of the realm, which is the Crown’s first duty, is the paradigm of so grave a matter. Potentially, such a thing touches the security of everyone and everyone will look to the Government they have elected for wise and effective decisions. Of course they may or may not be satisfied and their satisfaction or otherwise, will sound in the ballot box”.

There you have it. If you don’t like these political decisions, then vote out your Government, but don’t come to this Court. That’s the first principle. But that isn’t the end of the matter. It doesn’t mean that every time there is a question of law in the context of nuclear weapons that the Government can press the button marked., “National Security”, and do what they want. That is not the case.

There are four areas in which a court may be prepared to intervene. The first is where there is actual bad faith on the part of ministers. An example would be a minister who had financial links to a contractor involved with the manufacture of nuclear weapons, and who made a decision, as part of the political process, to award a contract to that contractor. The second area would be where basic procedural duties had been breached. Supposing our Government had given, on the record, a clear public commitment for the fullest public consultation through whatever means, before it made its important decision as to whether to replace Trident. If it simply failed to give the public that opportunity that, in my view, would be a clear opportunity for activists or NGO’s like CND, to go to Court and get the Court to order that the consultation must take place. A third area is where a UK statute had actually required the Court to review that type of high foreign policy or defence decision.

The fourth area, most importantly, is where human rights issues arise. If human rights issues are engaged in a particular issue, say concerning Aldermaston where we manufacture nuclear weapons, the decision-maker has to strike a balance between the human rights of those who are having those rights removed, and the need for state security. That is particularly important where rights are qualified. By this I mean that most of the rights in the European Convention of Human Rights are not absolute rights. The absolute prohibition on torture is an example of an absolute right. But most rights are qualified. The state is allowed to interfere with those rights in certain circumstances and the needs of national security is one of those circumstances. I’m involved in a case at the moment, concerning whether the UK Government can pass by-laws at Aldermaston, to absolutely prohibit any organised protest, or use of mobile phones. This would make it impossible for peace activists, who have been on that site for many years, to continue with their lawful business in exercising their rights of freedom of assembly. From what I’ve seen of those by-laws, I understand that they go too far because they are a disproportionate response to what the state is trying to achieve at Aldermaston, which I presume is less public protest because it is saying that there is national security interest. That would be an example of where the court might be prepared to intervene, even though the context is one of high foreign policy defence policy being the manufacture of nuclear weapons.

The third lesson, in my experience, is that it’s an absolute mistake to claim too much of the ICJ Opinion, or to try and argue that nuclear weapons, per se, are illegal because they will necessarily breach the intransgressible principles of international humanitarian law. In my view, no such conclusion can be reached. We have to live with the fact that we do have a fudge by reference to the phrase, “in extreme circumstances of self-defence”, and we do have a fudge in that the Court deliberately refused to rule on the policy of deterrence, for one cannot say that the policy of deterrence is in itself a threat to use nuclear weapons.

However, my experience is that more nuanced arguments can be made and can be more successful. In the case that I just referred to, the case about manufacturing nuclear weapons at Aldermaston, we wanted the court to look at whether the manufacture of nuclear weapons was in breach of the intransgressible principles of international humanitarian law. The question arose in that case as to whether the Eurotom Treaty applied to military uses of nuclear energy. The Government argued that the Eurotom Treaty, which brings with it the need for a full justification exercise, only applied to civilian uses of nuclear weapons and not to military uses. We said that one could not protect the health and safety of employees and the public if one did not know what were the background levels of radiation and one does not know what these are if one does not measure the emissions from military uses of nuclear sites. We said that as a full justification exercise had to be carried out, the regulator was bound to say that Trident was in breach of these intransgressible principles. It was automatically on the disbenefit side of the equation, whereas the regulator’s environment agency had automatically assumed that there was a benefit from what was going on because it involved de-commissioning old warheads. We got somewhere with that argument in that we managed to split the Court of Appeal one-all with one of the judges sitting on the fence. Unfortunately we were refused leave to go to the House of Lords although not long afterwards that very question, was decided by the European Court of Justice in a case, The Commission versus the UK. I have to say, sadly, that the European Court of Justice seemed to have made a political decision and said that actually the Eurotom Treaty only applied to civilian uses of nuclear weapons. So that’s one example of where nuanced arguments may be made which are more successful.

The fourth lesson I’ve drawn is that there is no room for activists to think that they can succeed in advancing the argument which says that the defence of necessity allows them to commit criminal damage to equipment or premises associated with the Trident weapon system. I’m not saying that those activists should not advance those arguments. I am saying that they should do so in the clear understanding that if the judge or the court are aware of the House of Lords decision of a few weeks ago, then they are bound to fail.

The argument goes like this. First that the UK’s policy of deterrence implies a threat to use Trident. Second, a threat to use force that is illegal, is in breach of 2.4 of the UN Charter. Third, that a threat to use Trident is in breach of the intransgressible requirement of the principle of distinction between combatants and non-combatants or the principle of proportionality in jus ad bellum. Fourth, as such, the UK’s possession of Trident is an international crime. Fifth, an international crime becomes incorporated into domestic law and becomes part of our domestic law without anything further being required and particularly without parliament legislating. Lastly, an activist is therefore entitled to rely on the defence that he or she was using reasonable force in the prevention of a crime.

There are a number of problems with this argument. The first obvious problem is that one cannot point to the ICJ Opinion to say that Trident does breach customary international law, and that, therefore, there is an international crime. The case I am referring to is the case of the 29 March 2006. This is the case of Margaret Jones in the House of Lords. It is therefore the authoritative ruling on this. It concerned a number of cases where activists had broken into bases, including RAF Fairford, in an attempt to stop the preparation of planes etc for bombing raids during the Iraq war. The activists tried to argue that the crime of aggression under international customary law was an international crime, and was therefore, incorporated into UK domestic law without anything further being required. That argument fell flat on its face. Lord Bingham referred to a passage from Sir Franklin Berman saying, “international law could not create a crime directly tryable in an English Court without the intervention of Parliament” It effectively said that this would be giving the executive far too much power and the sky would fall in if this was so. That is the position and that will remain the position for the foreseeable future.

One of my messages to activists is that one needs to be much more subtle about how one puts these arguments. In the Fairford case, the activists argued that there was a crime of aggression that was part of customary international law that was automatically incorporated into UK domestic law. I wonder whether they would have got further if they had argued that what they were interested in doing was stopping the war crime of dropping cluster bombs which are inherently indiscriminate, and therefore, breaching an intransgressible principle of international humanitarian law.

The fifth and last lesson is that lawyers can, and should, be criticised for undue reliance on litigation. My view, and I’ll expand on this, this afternoon, is that one needs to use international law in a much more creative way. In the UK, for the first time ever, the issue of whether or not a war was illegal has become a matter of huge public debate. That public debate continues and I believe that it has done our Prime Minister, Tony Blair, enormous damage. The public debate about international law didn’t just magically happen because the media decided this was interesting. It happened because civil society helped to make it happen. I think this is the key to nuclear weapons.

I think that in the UK at least, the NGO community have manifestly failed to engage public consciousness in the key issue. How can we spend £35-40 billion of our money, instead of spending it on education or health, when that activity is clearly unlawful. If one interrogates the facts of Trident in terms of its blast, heat, radiation effects etc, rather than trying to extrapolate from the ICJ Opinion some general principle about all nuclear weapons, one is left with the very clear conclusion that of course Trident could never be used in a way that was lawful. It is way too big. That is the opinion of Professor Christine Chinkin and Rabinder Singh QC issued in December 2005. That, to me, is where our efforts as lawyers and activists should be focussed, trying to get it through to the public in an ideological struggle that what we’re about to do is completely unlawful. I don’t particularly see at the moment, where litigation on these issues fits in with that struggle.