Pick-and-mix law?
‘What has international law ever done for us,’ asks the attorney general
International law has helped give the United Kingdom peace, security and prosperity, the attorney general said yesterday. Delivering the annual security lecture at the Royal United Services Institute, Lord Hermer KC described as the government’s policy in international affairs as one of progressive realism.
This policy, he said, combined a pragmatic approach to the UK’s national interests with a principled commitment to a rules-based international order. He distinguished it from the views of romantic idealists on the one hand and proponents of pseudo-realism on the other.
Wrong but wromantic
Hermer said:
Romantic idealists say that international law, conceived as the reign of moral principle, provides a complete answer to any question. To these idealistic champions, British foreign policy is simple. Follow moral principle wherever it takes us.
We should always lambast our closest allies regardless of whether or not it is constructive to the politics we pursue. We should always call out our partners with different types of governments, regardless of whether or not the criticism works or whether quiet diplomacy might more effectively produce results. We should always talk to hostile regimes nicely because that will result in them being nicer to us.
Such an approach was dangerously naïve, Hermer said. It took the world as the idealists wanted it to be, not as it is.
Right but repulsive
He continued:
At the other end of the spectrum, pseudo-realists demand that in these volatile times we must abandon our longstanding commitment to international law and to moral principle.
They say that we are witnessing the unravelling of the post-war international legal order and that the interests of each nation-state must again be superior to any international norms. They essentially advocate a return to Bismarckian notions of realpolitik.
Hermer accused the Conservative leader Kemi Badenoch of supporting this pseudo-realist critique in a speech she gave three months ago. And he condemned the shadow attorney general, Lord Wolfson of Tredegar KC, for adopting a “pick-and-mix approach, in which states can sometimes justifiably refuse to comply with their international legal obligations when they judge it not to be in their national interests to do so”. This was a “radical departure from the UK’s constitutional tradition, which has long been that ministers are under a duty to comply with international law”.
But the attorney general reserved his bitterest criticism for a former Conservative prime minister, referred to only by his surname:
No one can sensibly argue that the bombast of Johnson increased the standing of the United Kingdom in the globe — that people took us more seriously as a result of his schtick, that either allies or adversaries were impressed by the doctrine of “cakeism” or thought our reputation or reliability enhanced by legislating to deliberately breach international law (indeed a treaty that he himself had entered).
And Johnson’s successors didn’t fare much better:
Nobody can seriously argue that the world was made any safer when Liz Truss, when asked whilst the war in Ukraine raged whether France was a “friend or foe”, answered that the jury was out. And nobody could maintain that the UK’s reputation on the international stage was enhanced by the Rwanda scheme.
Progressive realism
The government’s senior law officer offered four reasons for rejecting both romantic idealism and pseudo-realism:
The international rules-based order soon breaks down when states claim that they can breach international law because it is in their national interests. A selective approach to international law would lead to its disintegration. “We all understand that if you sign a contract then you cannot unilaterally choose to comply with some terms but not others. The whole deal would fall through and no one would trust you enough to secure advantageous terms in the future.”
If the international law framework fails, if our multilateral institutions fall, then it is the UK’s enemies who succeed. “It is obvious that Russia and other malign state-actors see the undermining of the legal-based framework as a core objective… It’s why [Putin] invokes exceptionalism to justify his crime of aggression; it is why he devotes so much resources to undermining democracies and to seeking to fuel divisions within them.”
International law allows states both to pursue their strategic interests and at the same time give effect to the norms and values they hold dear. “When a state chooses to enter into an international treaty, that does not involve any surrender of national sovereignty to malevolent international actors or make the state a vassal of international organisations. It is a conscious decision that a state makes in their own interest.”
We can best achieve our own goals only within a framework of international law that makes it possible for others to do so too. “This government is clear that the national interest is served by the restoration of our reputation, not simply as a nation that respects its international law obligation but as a leader in the rules-based international order.”
Hermer offered examples:
It is not despite our commitment to international law that trade deals are being signed within months where the previous government failed. Rather, it is because we are now once again a trusted partner…
These successes, secured in international agreements, will be felt in the most concrete of ways by the people of this country — in thousands of new jobs, in the raising of living standards and more money in people’s pockets. This is economic benefit is a direct consequence of our return as a trusted partner in the rules-based order.
And the benefits extended to other vital interests:
It is no accident that the previous government, who played so fast and loose with our reputation as a leader in international law, were unable to reach any agreements that effectively addressed unregulated migration. Yet within months of office, the home secretary has reached ground-breaking deals with France on patrols of their own waterways to stop boats crossing the channel. Germany has agreed to amend its own domestic laws to stop the transport of boats and parts.
These agreements — essential components of attempts to clamp down on the criminal enterprise of small-boat crossings — would have been inconceivable, he said, whilst the UK was posturing over support for the European Convention on Human Rights and international law generally.
Constraining the courts
But international law does not give unlimited powers to international courts, the attorney general insisted:
States agreeing to treaties some time ago did not give an open-ended licence for international rules to be ever more expansively interpreted or for institutions to adopt a position of blindness or indifference to public sentiment in their member states.
International rules and institutions should not, without state consent, bend existing rules and obligations to make decisions or trade-offs that are far more effectively and legitimately dealt with through political and diplomatic means…
The UK has provided the international leadership for the renewed focus on subsidiarity in the European Convention on Human Rights, reminding both states and the international institutions that the primary responsibility for upholding human rights rests on national authorities and that the role of the court is a supervisory one which only need be invoked when the national system for protecting rights has failed.
“International law cannot and must not replace politics,” Hermer concluded. But upholding the international rules-based order would help make the world a safer and more prosperous place.
Apologies for the two subheads, which are taken from 1066 and All That. But Hermer did channel Reg from Monty Python's Life of Brian.
Great piece - but a nod to Sellar & Yeatman should never need and explanation, let alone an apology!
As-surely?- one of your OLDER readers, Joshua, I have found the ,”What has ………….ever done for us?” quotation often to be apt and telling. However modest or otherwise a representative post may be or have been, my experience has, I fear, often been of one’s peers finding fault and positing ( supposed) “answers” in one sentence to challenges, however intractable or laboriously worked upon the actions taken AND -of course- always subject to review and revision. To be fair shrewder elements showed more appreciation of complexities and efforts made. All of that does - I should add- appear to come with the territory.
Lord H’s speech does seem helpful to me and all the better for its whimsical delivery.
The “Johnsonian” and other exceptionalistic posturing over “abroad” has indeed jettisoned the UK’s international support as we readily pick up from our regular sojourns at our “pied-a-terre” in Sicily. Our nation has some ground yet to make up from that flippant detour.