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The Supremacy of International Law? – Part Two

Published on June 3, 2016        Author: 

Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part two of two). Part one is available here.

The relevance, engagement and application of international law in the domestic space are addressed explicitly and implicitly multiple times every day in the course of advice given to governments, advice that never sees the light of day and the issue in respect of which the advice is given only very seldom becoming the subject of litigation. In the course of such advice, it may be that the source of a legal obligation binding on the State assumes great importance. The issue may be, for example, whether the Government may be impleaded in this or that court or tribunal on the issue in question. The jurisdiction of the court or tribunal may thus bring with it questions about the relevant applicable law.

More often than not, though, the important question for consideration and advice is not the source of the obligation but rather its content. If compliance with the law, rather than defence against a claim of breach, is the issue, the source of the law is irrelevant. The State, or the Government, will be bound by relevant and applicable obligations of law whether they derive from national law or from international law.

Let me give you a tangible example. In 2009, the then UK Prime Minister, Gordon Brown, decided that the Government would produce what became known as Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. This exercise emerged from the concern that there was no single, publicly disclosable document that set out how UK military personnel and intelligence officers were to proceed when engaging with foreign States on the question of the detention and interrogation of individuals held in foreign custody.

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The Supremacy of International Law? – Part One

Published on June 2, 2016        Author: 

Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part one of two).

My topic is The Supremacy of International Law? I chose the subject unwisely, seduced by the question mark into the thought that there would be scope for erudition on a subject that, for international lawyers, is the touchstone of the authority and effectiveness of our discipline but dismissed or simply ignored by scholars and practitioners of national law – quaintly described by international lawyers as “municipal lawyers” – as being at odds with the reality of national constitutionalism or the sovereignty of parliament. Having thought about it further, and had the opportunity to look into the scholarship on the subject over recent years, I have settled for the more modest task of trying to illuminate a little more the dimensions of a debate that has both philosophical and practical resonance.

As you will all no doubt be well aware, the UK at the moment is in the throes of a great internal debate. It is at root a debate about identity – whether we are and should be part of Europe or are a mid-Atlantic island with a grand history that should see its future role as a stepping-stone, bridging the western cultural divide. It is about who we are and who we want to be, about harkening back and aspiration in an uncertain world.

But, once we scratch the surface, it is a debate about laws, about where they are made and who has the last say. It is about democracy in law, about the connection between the law and those whom it governs. It is not cast in these terms in the public debates and the fear mongering of politicians but it is in substance a debate about the supremacy of international law.

The international law in focus in this debate is an international law of a special kind, most directly in the frame is European Union law, with its doctrines of supremacy, direct application and direct effect, but following close behind is the Strasbourg law of the European Court of Human Rights that, in living instrument fashion, has turned a treaty into a constitution. The font of both is found in traditional instruments of international law, inter-State treaties of a standard setting and coordinating kind. Both have come a long way since the entry into force of their texts, having shaped and fashioned a community on the continent of Europe that looks to some at times more like a federal society than a collection of nation States. And the issue in both cases is who makes the laws and who has the last say. Most acute of these is who has the last say as there is an appreciation, accurately so, indeed an apprehension (in both senses of this word), that, once the ink on the constitution is dry, it is courts that fashion the society that develops thereon. Read the rest of this entry…


Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention

Published on September 12, 2013        Author: 

Sir Daniel Bethlehem KCMG QCsir-daniel-bethlehem is a barrister in practice at the London Bar, Visiting Professor of Law at Columbia Law School and was formerly principal Legal Adviser of the UK Foreign & Commonwealth Office.

The debate on possible intervention in Syria has moved beyond the discussion of whether any such action would be justified by reference to a principle of international law of humanitarian intervention.  Given the importance of, and interest in, this issue to this point, however, it may be useful to step back a little and reflect on the detail of the legal arguments that might be advanced in support of the existence of a principle of humanitarian intervention – not specific to Syria or the use of chemical weapons but for purposes of addressing an unfolding humanitarian catastrophe more generally. 

There are at least two distinct though intersecting strands of legal argument that could support a sustainable conclusion that the use of force in circumstances of dire humanitarian need would be lawful under international law notwithstanding the absence of an authorising Chapter VII resolution of the UN Security Council or other Charter-based justification (such as collective self-defence).  The first strand is purpose-driven, focused on the insufficiency of a narrow, traditionalist view of the law on such matters and the consequential imperative to translate from the existing law to address circumstances of dire humanitarian need.  This approach contends for the rapid crystallisation of a norm of customary international law in favour of a principle of humanitarian intervention – akin to the process that has seen the rapid crystallisation of other principles of customary international law, such as that of maritime straight base-line delimitation, on the basis of only limited (and even contested) State practice (and opinio juris) but compelling reason and need.

The second strand is more rooted in the detail of the law, pulling together threads of practice that in isolation may appear fragile and unreliable but which, when knitted together, are more robust and compelling.  As every litigation lawyer knows, an assessment of the legality of contested conduct is seldom a linear matter, there invariably being another side to the case.  Legality therefore often falls ultimately to be assessed by reference to a circumstantial appreciation of a range of factors rather than resting simply on some apparently trumping proposition of law.  In the case of the law on humanitarian intervention, an analysis that simply relies on the prohibition of the threat or use of force in Article 2(4) of the UN Charter, and its related principles of non-intervention and sovereignty, is overly simplistic.  The law in this area is more complex, even before one gets to any complicating issues of fact and imperatives of policy. Read the rest of this entry…