Law matters

A UK government minister has acknowledged that the next step in the country’s departure from the EU includes a plan to break international law. That decision that has led the government’s senior legal adviser to resign. As reported in the normally government-supporting Daily Telegraph, it appears he had already contemplated resigning over the government’s fast and loose way with the law.

Not surprisingly, the incident has caused outcry, both about the substance of the case and about the resulting damage to Britain’s international reputation. Bad and sad as that is, there is a bigger issue. This is only the latest example of a seriously worrying trend of disrespect for international law.

The principle of cooperation

Respect for the international laws and norms that underpin cooperation has declined in recent years. Their importance cannot be neglected if the international system is to function on the basis of cooperation rather than confrontation.

There has never been more need of international cooperation for jointly responding to shared challenges such as climate change, the pandemic, cyber vulnerability, arms control, security in troubled regions such as the Gulf, South Asia, Southeast Asia

International cooperation is underpinned by respect for international norms, agreements and laws. This is broadly true of cooperation at any level – between people, communities, groups, political parties, groups – you have to agree on the rules, explicitly or implicitly but always reliably. So the norms, agreements and laws of international relations cannot be undermined if we prefer cooperation to confrontation and if we actually want solutions to the biggest problems we face. Cooperation is the new realism of international politics.

And just when we need deeper, wider, fuller cooperation than ever before, there is a declining appetite for it among the great powers. Along with this goes eroding respect for norms, agreements and law. As a result of that, there is a worrying amount of drift in international politics, an incapacity either to achieve international solutions to crises or to address chronic issues.

The underpinning of cooperation is at risk

There have been some striking instances in recent years, alongside which, the Brexit law breakage acknowledged yesterday (and to be formally announced today) is a pretty small thing.

An egregious example is the premeditated murder of the Saudi Arabian journalist Jamal Khashoggi in October 2018 in the Saudi Consulate in Istanbul. Even the US State Department said Saudi government agents carried out the killing. The UN went further, calling it ‘a deliberate, premeditated execution, an extrajudicial killing for which the state of Saudi Arabia is responsible under international human rights law’.

Few examples of illegal actions by states carry as much power to shock as that. The novichok poisonings in 2018 of a former Russian spy, Sergey Skripal ,and his daughter in Salisbury, England (resulting in the apparently accidental death of a third person) and in 2020 of Russian opposition figure, Alexei Navalny, come close. Investigation of responsibility for poisoning the Skripals continues; there is doubt about whether the attempt on Navalny’s life will be subject to a similar investigation, for which Russia has blamed Germany.

But there are many other violations of international norms in recent years, so many that they begin to lack much impact.

  • Russia’s 2014 annexation of Crimea from Ukraine is regarded as illegal by the EU, which continues to apply sanctions, but that does not seem to disturb the pattern of Russia’s international relations.
  • A UN report finding that Russia – a permanent member of the UN Security Council – has committed war crimes in Syria during the period from July 2019 to January 2020 elicited little comment, let alone audible outrage.
  • Perhaps that is partly because, when the Syrian government was accused of using chemical weapons (CWs) in March and April 2018 in the Douma suburb of Damascus, France, the UK and Britain didn’t wait for an investigation before throwing missiles at suspected CW sites in Syria. The legal way was to wait for the investigation by the Organisation for the Prohibition of Chemical Weapons – frustrating perhaps but law demands due process. Defying it does not uphold the law.
  • And then, of course, there is China’s rejection in 2016 of the findings of the Permanent Court of Arbitration in a case brought by the Philippines over disputed islets and islands in the South China Sea.

The list could go on. Some of the examples revolve around interpretations of fine points of law, such as India’s decision to change the status of Jammu and Kashmir in 2019, which is being challenged in the Indian courts. Others challenge norms that are fundamental to the global economy, such as freedom of navigation, put in doubt by British and Iranian seizures of merchant vessels in 2019.

And then there are things that are simply ridiculous.

Yes, I am thinking of the US response to the arrest and trial in Sweden last year of the American musician, Rakim Myers, known as A$AP Rocky. When the case came to trial, President Trump sent his special envoy for hostage affairs to Stockholm at the time of the trial. An official US Government letter on 31 July 2019 warned the Swedish Prosecution Authorityof ‘negative consequences to the U.S.-Swedish bilateral relationship’ if the case was not satisfactorily resolved. Myers was found guilty, given a suspended sentence and was back performing in Sweden before the end of the year.

Constraining arbitrary behaviour

Leave A$AP to one side for the moment, something is going on here that is serious and not only unpleasant but profoundly risky. Arguably, states have always behaved arbitrarily when the incentives were strong enough and the disincentives weak. However, one of the hallmarks of the modern era of international relations has been a steady shift towards having an increasing number of international laws and regulations to constrain the behaviour of states.

Just as with the development of legal systems within countries, so between them, accepting constraints reduces the frequency of arbitrary behaviour.

And as with national law, so also with international law, only more so: a general willingness to accept constraints on arbitrary behaviour is key to the system’s success, making it possible to limit the damage done by rogue outliers.

It is easy to exaggerate this historical process. Comments about the importance of the rules-based international system generally overstate the coherence of international relations, just as the once modish term ‘international community’ overstated the degree of togetherness among the main actors. There is more than one rules-based system governing relations of different kinds among states. Nonetheless, the foundation of the UN at the end of World War II marked an important moment in a changing global landscape.

I have not done the detailed research to compare the current decade to previous ten-year periods since 1945 but it would, at first glance, be legitimate to think that the disincentives against arbitrary behaviour by states are weakening today.

If so, that is a serious problem because the current critical challenges raise a requirement for cooperation that is only possible on the basis of a functioning international system. Facing the problems of today, a go-it-alone approach is fantasy. The Covid-19 pandemic underlines the message that other global challenges today also carry, the message that cooperation is essential for human security and international stability.

And the further message that respecting the law is fundamental to cooperation.

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