Chatham House
The new government must work hard to restore the UK’s reputation as a champion of international law
A ‘reset’ in British foreign policy should extend to reinvigorating the UK’s commitment to international courts and institutions.
EXPERT COMMENT
PUBLISHED 18 JULY 2024
4 MINUTE READ
Elizabeth Wilmshurst CMG KC
Distinguished Fellow, International Law Programme
Email Elizabeth
Rashmin Sagoo
Director, International Law Programme
The new UK government features a number of lawyers with strong credentials in international law. Prime Minister Sir Keir Starmer has a record of defending human rights in UK courts and has argued a case in the International Court of Justice (ICJ).
Attorney General Richard Hermer has come straight from the bar, where his practice included significant international law cases and human rights. Foreign Secretary David Lammy, also a lawyer, though espousing ‘progressive realism’ in UK foreign policy, has included standing up for the rule of law as one of the aims for the country.
So, it is to be expected that the new government will recognize the importance of international law in its relations with other governments, be committed to international standards for upholding the rights of individuals, and understand the value of international law as part of a long term, strategic foreign policy.
But first there is much work to be done both within the UK and in its international relationships to recover trust and to re-establish a reputation as an upholder of international law and supporter of international institutions.
Making intentions clear
The new government should begin by encouraging more ‘joined-up’ government, placing the rule of law at the heart of aligned domestic and foreign policymaking.
It could do so immediately by making clear in the Ministerial Code (and Civil Service Code) that the duty to comply with the law includes complying with international law.
That principle could signal and inform a culture of strong support for international courts and institutions.
Supporting international institutions
At the United Nations and other international agencies, the international community will be looking at the government’s actions in the next few months.
One ongoing issue that needs to be resolved without delay is the dispute with Mauritius over the Chagos islands.
Ongoing calls for UN Security Council reform and an increasingly assertive UN General Assembly require deft, fresh and realistic UK diplomacy which is not tone-deaf to calls for inclusion from the Global South/Majority. Such diplomacy will need to recognize that current global geopolitics are not conducive to reopening treaties or negotiating new ones.
One ongoing issue that needs to be resolved without delay is the dispute with Mauritius over the Chagos islands (BIOT).
In its advisory opinion of 25 February 2019, the ICJ declared that the UK should bring to an end its administration of the archipelago as rapidly as possible. To this end, the government should now finalize the ongoing negotiations with Mauritius.
The UK with other states parties should help the ICC focus on its current mandate, given the challenges the Court has to deal with.
Consistent support for international courts and their independence can contribute to a more stable UK foreign policy and help restore trust with partner countries.
The UK should work with partners to provide particular support for the ICJ, the International Criminal Court (ICC) and the European Court of Human Rights (ECHR). It should also work towards improving the system of international investor state arbitrations. Such support should not be contingent upon the outcome of any particular court case.
Rather than adding new crimes to the Rome Statute, the UK with other states parties should help the ICC focus on its current mandate, given the challenges the Court has to deal with.
The UK can show its leadership and support by ensuring its interventions in international litigation are long term, strategic, and rooted in legal principle, seeking clarity on specific points of law, rather than reflecting short term political reactions. A first test will be its decision on whether to pursue its legal challenge to ICC jurisdiction over Israeli actions in Gaza.
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The UK should also put renewed energy into a long term strategy for growing talent for and nominations to international judicial and legal appointments in multilateral forums. This includes the ECHR, where constructive reengagement is needed, and UN treaty bodies.
And the government should work hard to get a British judge in the ICJ again. That is not simply because of national interests – the UK is the only permanent member of the UN Security Council to have accepted the jurisdiction of the Court under the optional clause (albeit with limitative terms and conditions). It is also because British judges have a reputation for their contributions to the quality of judgments generally.
Careful use of language
Governments should not need reminding that the way they speak has an impact. An adverse judgment against the UK in the ECHR should not invite generalized criticism of the system as a whole.
Crucially, the government should challenge political rhetoric aimed at the human rights system.
Occasionally the Court’s judgements are unattractive to a government, but the benefit of the Court to people in the UK, Europe and the world is immeasurable. Constructive engagement with partners on perceived deficiencies and improvements is the way forward.
Crucially, the government should challenge political rhetoric aimed at the human rights system. If the system is not clearly defended it should be no surprise if the population turns against it.
Multilateralism does not always require new treaties
New challenges require new tools. International cooperation is needed to meet threats like AI-powered cyber operations and disinformation campaigns.
A new AI treaty is not necessarily the answer. But the UK’s constructive engagement in negotiations on responsible state behaviour in the cyber context puts it in good stead to encourage articulations of how existing international law applies to AI – and to seek global consensus on well-considered soft law initiatives.
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The humanization of international law
However true it is that international law once evolved to secure the sovereignty and interests of states, it is now increasingly concerned with the wellbeing of the individual – including with respect to the consequences of the climate and biodiversity crises.
The UK government will need to convince both the world and its own domestic constituencies that its relations with Israel fully recognize the constraints of international humanitarian law. That includes when it makes decisions to grant export licences for arms and other materiel. An independent review of its arms exports policy and practice may assist with this.
Image — The logo of the International Court of Justice (ICJ) in The Hague in January 2024 (Photo by REMKO DE WAAL/ANP/AFP via Getty Images)
(Topics
HUMAN RIGHTS AND SECURITY INTERNATIONAL CRIMINAL JUSTICE UK’S GLOBAL ROLE
Regions
UNITED KINGDOM
Departments
INTERNATIONAL LAW PROGRAMME
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Sanctions against persons and companies are becoming an increasingly popular tool for responding to breaches of international law and human rights. But the government should undertake assessments of whether due process is ensured for listing and de-listing individuals, and whether these restrictions achieve their purpose.
Here again more cooperation is needed with other countries on the criteria for imposing individual sanctions. The UK could champion a sanctions protocol in this regard.
International law in a polarized world
There is no doubt that the international law system is being challenged. For example, it is frequently asked why states that were not in existence when international law developed, should be constrained by it.
Avoiding use of the term ‘international rules-based order’, a vague formulation which can mislead, whether intentionally or otherwise would be a good starting point.
But those states owe their very existence to international law constructs, and they operate within the system and use its courts, treaties and institutions to assert their national positions.
It is also often said that there are double standards. This has always been the case, and they should be called out whether they be those of the West, Russia or China, or indeed the Global South/Majority.
Avoiding use of the term ‘international rules-based order’, a vague formulation which can mislead, whether intentionally or otherwise would be a good starting point.
While pressing for change where change is needed, the government should recognize that a strong system of international law is in the common interest of the UK, the EU and other allies, as an aid to stability in international relations and allowing the individual to flourish.
The new government must now seize the opportunity to reassert UK commitment to international law – and provide a welcome reset.
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