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Does international law even exist?

September 17, 2020 - 9:00am

Yesterday, Boris Johnson agreed to amend the Internal Markets Bill by granting MPs a vote before he can use the powers in it that would ‘break’ international law.

The move marks a partial climbdown from No10 in spite of claims that it actually “strengthened” the controversial provisions in the bill. But this is beside the point. In legal terms, international law is not the same as domestic law. As far as the UK courts are concerned, the European Court of Justice is not sovereign. Parliament is.

International law cannot be enforced by any police force, only voluntarily obeyed. As Thomas Franck, an esteemed international lawyer, once said: “the surprising thing about international law is that nations ever obey its strictures or carry out its mandates.”

The UK government knows this. International law is made by and for states. And states are invariably motivated by national interest.

To understand the government’s actions is to understand the foundations of our decision-making processes. In the UK there are no constitutional limits on Parliament, which can enter into and cancel any law at will. This includes EU legislation. The UK has an unwritten constitution and an executive that is answerable only to Parliament. As Lord Sumption has said, we are almost the only country in the world of which this is true.

Inevitably some rules of international law are broken. Instead of focusing on the breaches, better to ask why rules are followed by states, without compulsion?

The answer, I believe, is legitimacy: the invisible glue that holds rules together. It is the conviction of the governed that it is right to obey without coercion.

So what makes rules legitimate? Four things: Determinacy, symbolic validation, coherence, and adherence. Determinacy and coherence mean that the rules must be defined, transparent and clear. Symbolic validation and adherence mean we need to understand their underlying values (validation), making it easier to comply with them (adherence).

The affected articles of the Withdrawal Agreement are neither incoherent nor indeterminate. The issue is their symbolic validity and the extent to which we feel it necessary to adhere to them, after the impetus for doing so has evaporated. Yes, Britain’s reputation will be harmed if it disregards its international obligations — the violation offends the oldest principle of international law, ‘pacta sunt servanda’ (promises must be kept) — but Government presumably weighed policy and reputation, and decided that the cost to reputation was outweighed other considerations.

The Bill was a policy move. It may be a gamble on Johnson’s part — and in his latest compromise talks with disgruntled MPs he is realising he cannot ride roughshod over his own party members’ opinions — but so far the UK’s practical negotiation position hasn’t been harmed and trade talks continue regardless.

So the question is not whether we respect international law, but whether international law has the clout to do anything about it.

Noor Kadhim, International Disputes Partner at Gardner Leader LLP

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Ian Barton
Ian Barton
3 years ago

Interesting read – which at a naive summary level (like mine) probably reflects what many people think …

What tickles me is that so many people don’t see the high-probability that a partial climb-down was almost certainly intentionally factored-in before the announcement was made.

This approach allows loads of people the satisfaction to be high-minded and claim success, while the government gets exactly what it wanted all along.

“shooting fish in a barrel … ” seems like the right analogy …

Steve Gwynne
Steve Gwynne
3 years ago
Reply to  Ian Barton

Most definitely lol. I presume it would have infringed the ruling of the Miller case which ruled in favour of Parliamentary Sovereignty over Ministerial Royal Perogative powers if changing a Treaty has a direct effect on domestic law.

Peter KE
Peter KE
3 years ago

Good article.

3 years ago

What an excellent article Noor! I’ve not read “international law” and sovereignty expounded in such a concise and clear way for a very long time (I’m no lawyer). Where were you in the run up to the 2nd Gulf War when every angry nincompoop was marching in the streets (and my local pub) raving about such matters without the least idea of the rich and beautiful history of British jurisprudence. One of the supreme achievements of the human spirit. A beacon of light to the oppressed of all nations down through the ages.

That the Anglosphere was guilty of gross beaches of “International Law” was shouted at me, daubed on shopfronts near where I lived, big print advertisements were paid for and run in things called Newspapers etc etc. By people who wouldn’t know any of our shared rich constitutional history if it crawled into bed and bit them: I know I’m stretching a point but I came to believe that we OWN the Law. It is what we say it is. No more, no less. And any attempt at moral suasion by eurotrash bureaucrats and their fifth columnist enablers within our own borders left me too disgusted to spit.

Whilst the Frogs and Boxheads were still trapped in the cul-de-sac of zero-sum oppression, rape and pillage, our ancestors bit by bit crafted the Rule of Law and dragged us up out of the muck. It cost some people (and a king or two) their lives and ruined the livelihoods of many, but respect for property rights and civil rights have been exported from the UK time and time again down through the ages to those craving justice, and some who didn’t. So to have some knot-haired, 30-yr-old juvenile delinquent with shit in their face scream they wouldn’t support my war to steal oil from the good citizens of Iraq was particularly offensive. They probably lacked the processing power to tie their own shoelaces but they were so utterly, so gormlessly conceited that they couldn’t conceive that perhaps they couldn’t see the thing more clearly than the rest of us. It was back in the day before Woke so I didn’t really fully understand their pathologic need for moral posturing. That not only could they see further and more clearly than everybody else but that they were Better than everyone else too.

You look too young to join me in my reminiscences of that unhappy time but you are legal counsel so I guess you would’ve come across some of these outrageous ideas I’m spewing forth, even if you don’t share them.

But hell: there was a small matter of the WTC to avenge and the Yanks had to do some damn thing right? My medium sized country tagged along even though we knew in all likelihood it was going to be a bloody mess (as wars often are) but we had to show we had some skin in the game because the States are our ticket to safety. We’ve always stood by them and always will I suspect because when the shit hits they are going to be our Ace in the hole. They saved us from the Nips one time and as a kid growing up my mates and I would secretly snigger at our grandparents: at how deeply traumatised their generation had been, and many still were. First the Great War, then the Depression, and then the bloody Nips coming down through Malaya: when was it ever going to stop?

And then when they met their brothers and cousins who came back from the death railway weighing less than their own wives what must they’ve thought? In 1945 did they massacre the evil bastards who did it to them: no they didn’t. Their officers still had the moral power to say to their men: no we are better than that, we will act according to the Geneva conventions on War Crimes and POW cruelty.

How many barrels of oil have been stolen from the sovereign nation of Iraq by the war victors I wonder? Has it ever been reliably quantified? Does anybody even care nowadays or has the villainous aspersion done it’s work and may be allowed to fall to the ground unregarded and unregretted?