Why International Law Matters

It is a great pleasure to have been invited here this evening to mark the opening by my chambers of an annexe in The Hague, from which we hope we may be able to better offer our services in the field of public international law. As a member of chambers with a background of ministerial office in the United Kingdom, as Attorney General, I have thus found myself asked to give a short talk this evening on the importance of international law, an opportunity, which with my past and present interests in its promotion I am delighted to take. I am also particularly grateful to the Ambassador, who has so kindly made available this beautiful venue for the occasion.

Last year, as you will all know, we celebrated in the United Kingdom, the 800th anniversary of the sealing of the Magna Carta in 1215. It is not my purpose this evening to give a talk on the importance of this event in my country’s history. But I think there is no doubt of its significance in helping develop our national narrative on the Rule of Law. The Charter and its re-invocation in the 17th and 18th centuries and indeed more recently, has helped contribute to both a domestic and perhaps an international debate on this issue. It has also helped underpin in the United Kingdom the changes to our domestic legal frameworks that have over time ensured the progressive protection of the rights of the individual by the development of changes to ensure a due process of law and the prevention of the exercise of arbitrary power by state actors.

Early last year, as part of the celebrations, a Global Law Summit took place in London. Its principle aim was to discuss the importance that the rule of law and efficient legal services have to the development of international commerce, the activity which has perhaps more than any other contributed to human progress. London has been recognised across the world for many centuries as a centre of trade, commerce and finance. But it is no coincidence that also during this period the United Kingdom has come to be regarded as a place where one could enjoy the protection of the Law and where in more recent times upholding, protecting and promoting the rule of law has been a central activity of the state. Put simply London could not have become the global financial and commercial centre it is, were it not for the rule of law being held there in high regard.

Today, the United Kingdom is seeking to export professional legal services and the ethics and principles which underpin them across the globe and there appears to be a ready market desirous for those educated and experienced in our system of justice and jurisprudence. It can be seen from the many retired United Kingdom judges serving on international commercial tribunals and arbitrating on disputes at many locations on our planet.

But it was noteworthy that a considerable part of the Global Law Summit agenda centred also around the role of the law in underpinning not just the relationships between individuals and corporations but also the relationships between states. This is hardly surprising seeing that it is a precondition for economic activity that there should be domestic and international political stability. As we can see today in the Middle East, the Ukraine, parts of Africa and twenty years ago in Northern Ireland, nothing is more certain to destroy economic prosperity and the quality of life of the population than violence and conflict. Those who doubt the importance of international law commonly argue that there is insufficient incentive for States to comply with international law. It is true that, compared with national laws, there is often no immediate judicial sanction in international law. But States rely to an ever increasing extent on economic interactions with other States and international organisations. The loss of reputation that comes from failing to comply with international law, or failing to participate in international mechanisms for dispute resolution, means that States would soon find their economic interactions adversely affected. The rule of law is therefore a precondition for healthy economic activity in the international sphere, just as it is in national law.

Fortunately, it has been a feature of the modern history of the United Kingdom, that a rise to a short period of world power status seems to have been accompanied for most of the time by a hard headed understanding that trade and peaceful relations (albeit if possible on favourable terms to the UK) and the avoidance of conflict wherever possible, was the key to prosperity.

When I was Attorney General, and thus the government’s legal adviser, I was struck by the extent to which a great deal of my workload concerned the interpretation of international legal obligations. I therefore asked our Foreign Office as to how many treaties we were adhered. They were a bit surprised by this request and refused to go back beyond 1834 when modern recording began. Since then however their treaty experts told me that there were over 13,200 records of treaties and agreements which the United Kingdom had signed and ratified. Many thousands of these agreements are still applicable and they range in importance from the United Nations Charter and the European Convention on Human Rights to local treaties over fishing rights or maritime access.

Many of these treaties are far more than abstract statements of good intentions. Around 700 contain reference to the possibility of binding dispute settlement whether over their subject matter or their interpretation and this of course now includes such matters as the ECHR through the work of the European Court of Human Rights and the EU treaties through the Court of Justice in Luxembourg.

And far from these being novel, they have a long pedigree going back probably to treaties agreeing to submit differences to Papal arbitrations in the Middle Ages. But things really took off for us in Britain at the end of the American War of Independence when a raft of border and compensation issues left over from the Treaty of Paris of 1783, were resolved by this mechanism. It set a precedent that was used again to resolve the dispute between the UK and the USA during the American Civil War over the sale and supply of the warship Alabama to the Confederate government, which then took over 65 prizes and damaged the Union to the tune of $123 million in today’s money. Anger in the USA at this British perfidy prompted the 1871 Treaty of Washington which provided for a resolution by arbitration. This led to the unprecedented payment of $15.5 million by the UK to the USA. But the resolution of the dispute through arbitration also paved the way for a long lasting rapprochement between our two countries that has continued to this day and has entirely outweighed the short term financial cost.

We then went on to arbitrate disputes with Portugal, the Netherlands and Venezuela. That lead to our support for the creation of the Permanent Court of Arbitration in 1899 and 1907 and as Sir Michael Wood, one of our most distinguished international lawyers has said we became in those early years a “hesitant pioneer” of international dispute settlement. From these limited beginnings, arbitration, of course, has grown dramatically, not only with the growing caseload of the Permanent Court but also the proliferation of other vital centres for dispute resolution such as Dubai or Singapore.

After the First World War we championed the establishment of a Permanent Court of Justice. Since 1930 we have accepted the compulsory jurisdiction of the Court and its modern successor the International Court of Justice, which celebrates its 70th birthday this year, almost without a break. I don’t think it is an exaggeration to say our commitment to international dispute settlement is without parallel among the major countries. In particular we are unique in respect of the permanent members of the Security Council in accepting the compulsory jurisdiction of the Court.

On its own however, adherence to systems of international dispute settlement is not the only test of commitment to the Rule of Law. As Lord Bingham made clear in his eight principles, the essential element is a commitment to comply with international obligations, not just pay lip service to them. That remains the position of the UK government, despite the rather regrettable removal of a direct reference to compliance with international law in the recent changes to the British Ministerial Code. This commitment manifests itself in various ways. For instance, when the use of drones to kill Reyaad Khan, a British national, in Syria was criticised, it was defended by the UK government both domestically and in a letter to the Security Council in terms of the right to individual and collective self defence – terms of art familiar to any student of international law. There is growing evidence that national courts are increasingly willing to scrutinise alleged breaches of international law – and the Reyaad Khan case is expected to be challenged in national courts in the UK just as there are domestic proceedings underway in the USA in respect of its role in drone strikes.

Importantly, a commitment to comply with international law pre-supposes a willingness to accept that at times, complying with one’s obligations may require accepting decisions on interpretation with which one may disagree. Nations are willing to do that because they recognise, as we recognise, that no nation can stand alone in isolation from others in our interdependent world in the 21st century and that if we expect others to comply with international law we must do so ourselves.

So we have to accept that despite a first class diplomatic service like that provided by our ambassador here and the involvement of lawyers providing the best legal advice to government they can, as I know some members of my chambers do, not everything is going to go our way. Whereas our successes will be confined to the worthy pages of legal journals, legal failures in our country tend to end up on the front page of tabloid newspapers.

In recent decades the United Kingdom has succeeded in defending its position before international tribunals on nuclear power, in securing continental shelf claims in the Bay of Biscay and in defending the UK’s position on VAT from the European Commission and Bond dealing from the European Central Bank. We have been less successful in some other areas, in Strasbourg in dealing with prisoner voting, in arbitration with Eurotunnel over border security or at the UN and UNCLOS with our claims over Ascension Island or on the British Indian Ocean Territory where I had the pleasure to appear in part of the arbitration claim brought by the government of Mauritius against the United Kingdom.

These adverse decisions have to be seen as a normal part of dispute resolution. Every state with the vision to participate in the creation of an international law framework must make a clear eyed assessment of their national interest based not on immediate outcomes but on the medium to long term. For the United Kingdom, our economic and physical security remains rooted in international engagement and the fact that the institutional structure does not always favour us and can be politically unwelcome should not deter us from a path which I believe is consistently to Britain’s advantage and in accordance with its strategic goals.

I believe that many other States see the same advantages in international law. How else are we to explain the burgeoning caseload of every international tribunal? For instance, the International Court of Justice’s last annual report indicates that its caseload has grown considerably in the last 20 years. According to that report, it has 12 contentious cases which range in subject matter from the delimitation of maritime spaces in the Indian Ocean, to the question of Bolivia’s access to the Pacific Ocean to claims that documents were wrongly seized by another State. Importantly, those 12 cases are drawn from all corners of the globe, so that 5 come from the Americas, 4 from Africa, 3 from Europe, 2 from Asia and 1 from Oceania. The diverse geographical origins of the ICJ’s cases show the number of States who are willing to commit to international dispute resolution.

Similarly, the Law of the Sea Tribunal, now in its 20th year, also reports that the level of judicial activity is growing. It now has 166 States parties, 167 if you count the European Union as a State Party in its own right. Those numbers alone attest to its diverse membership. Interestingly, it issued one of its first advisory opinions last year in a case brought by the Sub-regional Fisheries Commission which addressed flag state liability for illegal, unreported and unregulated fishing activities. Apart from the seven African countries who made up the Sub-regional Fisheries Commission, 22 other States Parties made written submissions including the UK, the European Union, China, Middle Eastern States such as Saudi Arabia, Asian States (Thailand) and South American States (Chile and Argentina). A number of those States also attended the oral hearings. The USA, although not a State party, also made written submissions which were considered by the Tribunal. If States do not perceive international law to be important, why were so many States, from different geographic regions, willing to invest time and money in making submissions seeking to affect the outcome of an advisory opinion by the Law of the Sea Tribunal?

The Permanent Court of Arbitration currently has 5 inter-State cases, 55 investor-State arbitrations and 34 other arbitrations. Those arbitrations cover a range of topics such as boundary disputes, the boarding and detention of a specific vessel and many investment treaty arbitrations. Perhaps the most attention is drawn to the ongoing case between the Philippines and China arising out of the South China Seas. Whilst it is right that China has not participated in the proceedings, that has not stopped the arbitration proceeding and the merits hearing took place in November 2015. It is remarkable to see one of the most charged disputes in the region being addressed before an international tribunal. These examples from various different tribunals demonstrate that despite its detractors, international legal dispute resolution is growing both in terms of the number of cases and the number of States willing to become involved in proceedings.

If we are to convince those that will join us as the powers of tomorrow that its is their interests to work within the system, then we need to work with our closest partners in leading the effort to strengthen and deepen the international rule of law, in all its manifestations. We are doing this at present by championing reform at the United Nations and the expansion of the Security Council. We are striving to do it by reforming the EU to more closely reflect the aspirations of its citizens. In the Brighton Declaration of 2012 we sought to help the European Court of Human Rights grow in efficiency and by amending the preamble of the Convention that the Court should have due regard to the principles of subsidiarity in matters decided by national Parliaments and supported by the reasoning of national courts striving to apply the Convention within the margin of appreciation that should be properly allowed to them. It is noteworthy that these last reforms appear to be working as intended and to be helping the European court build its authority.

There are some who argue that International Law is pointless because it is in many cases unenforceable and that it is so easily open to being ignored or rendered useless by self serving interpretation that we should give up the challenge of creating an international order. But it seems to me that the evidence of its beneficial impact is overwhelming. One of the key strengths of international law and international human rights law in particular, is that it tends to have a pervasive effect. Even states outside the fold of respectability have found themselves compelled to adopt the language of international law and to try to frame their arguments or propaganda using the parameters of international rules. This in itself may have a beneficial effect in preventing the most egregious violations of international law.

Many examples could be cited of the pervasive effect of human rights and humanitarian law. The International Criminal Court recognises this expressly, with Article 21(3) of the Rome Statute providing that “the application and interpretation of law pursuant to this Article must be consistent with internationally recognised human rights”. That is a powerful provision which ensures that human rights underpin every aspect of the ICC’s work. In a completely different context, in one of its earlier decisions, concerning the MV Saiga (No2), the Law of the Sea Tribunal held that “considerations of humanity must apply in the law of the sea as they do in other areas of international law”. In that case, the Tribunal applied customary international law principles on the use of force to an incident in which a Guinean patrol boat engaged an oil tanker. More recently in the Enrica Lexie, provisional measures were requested arising out of an incident which caused the death of two Indian fishermen off the coast of India, involving an Italian flagged ship. India asserted criminal jurisdiction over two Italian marines who had been on board the Italian flagged ship at the time of the incident. In considering provisional measures, the Tribunal relied on the same principle – that considerations of humanity apply to the law of the sea - to take into account, first, the suffering of the families of deceased Indian fishermen and, second, the potentially long restriction of liberty for the Italian marines. In this way, principles familiar from Articles 6 to 10 of the International Convention on Civil and Political Rights found their way into the Law of the Sea Tribunal’s jurisprudence. And, of course, there are many examples of international human rights principles affecting national judicial decisions on topics as diverse as the rights of children in family proceedings, the development of a right to privacy or the scope of inquests into deaths.

If many also try to circumvent international law, the history of the seventy years since the end of the Second World War suggests that the growth of international law has had some tempering effect on the ability to use force without justification or to violate human rights with total impunity. More than ever in international fora such as the United Nations, the debate about what can be done in respect of a given international problem is driven by legal principles and the options and restraints that are provided for in the applicable legal framework.

Nowhere is this more apparent than in international criminal law with its stated aim to end impunity for the most serious crimes of international concern. Seventy years after the start of the Nuremburg Trials, we have moved through the creation of ad hoc tribunals for the former Yugoslavia, Rwanda, Sierra Leone and others, to the creation of the International Criminal Court which moved very recently to its permanent premises. The International Criminal Court has its critics and, of course, it is not a perfect institution. But it is worth dwelling on the novelty and importance as a symbol of having a permanent International Criminal Court at all. Its existence proves that those who commit war crimes and crimes against humanity will be brought to justice at the International Criminal Court or in their own countries with sufficient regularity as to remove the notion that impunity is the norm and those seeking to evade justice will find ever increasing restrictions on their freedom of movement.

It is easy to demonstrate the potential for the International Criminal Court to develop into a powerful force in international law. More than one hundred and twenty states are already party to the Rome Statute. Importantly, Article 15 of the Statute gives the Prosecutor the power to initiate investigations proprio motu. That gives the Court as an institution a remarkable ability to act in many situations and States. Indeed, preliminary investigations are ongoing in Afghanistan, Columbia, Guinea, Iraq, Palestine and the Ukraine. As recently as 27 January 2015, Pre-Trial Chamber I authorised the Prosecutor to open an investigation into the situation in Georgia. A diverse range of situations is therefore already before the Court. Of course, the opening of an initial investigation does not necessarily mean that trials must take place in the Hague. Complementarity is a key feature of the architecture of the Court. If genuine national investigations and prosecutions are ongoing, there may be no need for the International Criminal Court to take jurisdiction. The UK continues to engage with the Prosecutor in respect of allegations with regard to Iraq and has every expectation that the Prosecutor will be satisfied by the extensive investigations undertaken by the Ministry of Defence’s Iraq Historical Allegations Team.

Another illustration of the growth of international law and the potential of the International Criminal Court are the steps being taken towards a crime of aggression. For so long a creature incapable of definition, the Kampala conference of 2009 crafted a test based on the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. But the ICC will not take jurisdiction over the crime of aggression until 30 States parties have signed up to the Kampala amendment. That seemed a long way off in 2009. But when Lithuania accepted the amendment in December 2015, that brought the number of States to 26. If not this year, then it is surely likely that in the coming years a defined crime of aggression will be added to the list of crimes over which the ICC has jurisdiction.

In the United Kingdom there is a real sense of pride in our having taken a lead in these matters, both in accepting the jurisdiction of the ICC and in providing many of the personnel who have become prosecutors at the Court and the ad hoc tribunals, including for our chambers Andrew Cayley, who moved from the Khmer Rouge tribunal to become the Director of our national Service Prosecuting Authority.

The advantages of promoting a system of international standards and rules extend well beyond the treaties themselves. When I became Attorney General I had expected to be confined to my desk at Westminster. But the role involved a considerable amount of foreign travel to support and promote capacity building in the field of the rule of law, whether to a trial centre in Kabul developed to remove impunity and bring to justice local drug barons, to the Occupied Palestinian Territories to discuss improvements to legal process and to Gulf countries looking to reform and develop their domestic justice systems.

But much of this work is not that of government, but relies on government producing the climate in which it can thrive. Thus, after my visit to the Palestinian Authority the work was led by the Slynn Foundation and the Bingham Centre for the Rule of Law, two of our important NGOs in this field. The international pro bono work done by a large number of British lawyers and law firms as well of course by many in other countries as well is one of the greatest promoters of the rule of law that we have.

It is the accumulated total of these benefits that have prompted me to express my concern at the United Kingdom government’s suggestion that we might replace the Human Rights Act with a British Bill of Rights that might not be compatible with our adherence to the European Convention on Human Rights. Such a development could only damage the United Kingdom’s ability to promote an international law framework in which we have invested much effort over the years and in which we should take pride. Like all human constructs it is far from perfect, but it is infinitely better than a world without them. I am therefore very pleased to note the reassurance of the Prime Minister David Cameron that he wants my country to continue playing a full part in the operation of the Convention. I look forward to helping him achieve this.

For those of us who are lawyers, there is obviously an area of self interest in our promoting all forms of legal mechanism for dispute resolution. My chambers is hoping that in opening this annex we will be able to add to and diversify our international practices and build on the work many of us already do from London. But I know I speak for all my colleagues in saying that the greater professional satisfaction will come if we can feel that we are making a positive contribution to the development of international law. We are also looking forward to the helpful cross fertilisation that comes from common lawyers working closely alongside those from a civil law tradition, just as we have for so long benefitted from having in our own country two legal traditions in Scotland and England to help develop a shared jurisprudence. So I am grateful to you all for coming this evening and your kind welcome.

Dominic Grieve