US-UK Mutual Defense Agreement: A Violation of International Law?

“The great alliance between the United States and the United Kingdom is rooted in shared interests and shared values,” President Obama proclaimed with UK Prime Minister David Cameron by his side. “And it’s indispensable to global security and prosperity.” Indeed, the United Kingdom and United States have been the closest of allies for quite some time, nowhere more so than with defense cooperation. And the main defense arrangement binding the two allies together – the US-UK Mutual Defense Agreement (MDA) – will almost certainly be renewed by the end of 2014, problematically without democratic debate in the United Kingdom and amid uncertainties affecting both countries about international treaty obligations.

There remains some doubt that the MDA is consistent with the Non-Proliferation Treaty (NPT). Before the MDA is officially renewed, the United States and United Kingdom ought to publish separate legal opinions outlining their opinion on how the agreement conforms to their obligations as signatories of the NPT. Without legal justifications, the entire agreement’s conformity to the NPT would remain in doubt.

Both countries signed the Agreement For Cooperation on the Uses of Atomic Energy for Mutual Defense Purposes – commonly known as the US-UK Mutual Defense Agreement – in 1958, not long after the UK tested its first thermonuclear weapon and the US Congress lifted its ban on the sharing of classified nuclear information to foreign governments. A 1959 amendment to the agreement permitted the direct transfer of nuclear technology and materials, which has over the years included exchanges between the two of highly enriched uranium, plutonium and tritium.

By the end of this year, the MDA must be renewed by both governments or the arrangement as amended will expire. While there is near certainty that the agreement will be renewed, controversy, especially in the UK, persists. Critics argue that the MDA violates multiple principles of the NPT, is signed and ratified by the UK Government without democratic consent, and proves that the supposed “independent UK nuclear deterrent” is not actually independent at all. For now, let us solely focus on the NPT.

Article I of the NPT states that nuclear weapons states cannot “transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices … directly, or indirectly…” The British American Security Information Council (BASIC) has consistently argued that the MDA operates at the boundaries of the letter and spirit of Article I as it allows the exchange of nuclear information and technology “in their pursuit of more sophisticated weaponry.” Moreover, BASIC has maintained that the MDA also violates Article VI of the NPT, which requires that nuclear weapons states work towards nuclear disarmament. According to a legal opinion concerning Article VI, published in 2004 by Rabinder Singh QC and Professor Christine Chinkin, the 2004 renewal of the MDA was likely in violation of the NPT.

Both governments maintain that the MDA is in full compliance with the NPT and international law. In fact, the US and UK governments informally respond by pointing out that each has substantially lowered its nuclear arsenal over the years and no transfer of actual complete nuclear weapons or devices has ever – or will ever – occur. Moreover, arguments have also been put forward that the MDA pre-dates the NPT, though of course there have been secret amendments made to the agreement numerous times since the NPT was signed. It is true that both countries have far fewer nuclear weapons than they had when the NPT entered into force in 1970. But the active steps toward complete disarmament seem to be lacking, and there is clearly no intent to move towards complete disarmament, the actual requirement of the Treaty. Either way, the transfer of highly enriched uranium, plutonium, and tritium raises perfectly legitimate questions that must be answered, especially considering the “indirect” provision of Article I.

If both countries are confident the agreement complies with the NPT, why not share that knowledge with the rest of us? Yet Her Majesty’s Government rarely answers questions – even from MPs – about the MDA, citing national security concerns. For its part, the United States is certainly more open about details, but still not enough. In any case, there is little criticism in Washington on this particular issue.
Maybe this is a simple case of international law interpretation, where opinions vary widely and no single authority can definitively make – let alone enforce – a ruling. But the MDA’s criticism must be answered, and citizens of both countries – and the rest of the world – deserve necessary explanations about international compliance.
Nuclear Information Service (NIS), a UK-based independent organization, has made repeated calls for the UK government to legally justify the US-UK MDA with its NPT obligations. In its most recent report, NIS recommended that “the [UK] government should publish a legal opinion to show how it considers the Mutual Defense Agreement can be extended without breaching the NPT.”

The United States is no exception, and it should be held to this same exact standard. The NPT is easily one of the most important treaties to international relations in the history of mankind. Even critics of the NPT would have difficulty justifying how the US and UK can willfully ignore the treaty for decades at a time. Put simply, any potential breaches – even a tiny hint of a violation –cannot be brushed aside or overlooked. It is time to publish the legal justifications and attempt to prove once and for all that the MDA complies with the NPT.

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