Lord Hermer KC has done it again. Delivering RUSI’s annual security lecture this week, the Attorney General set out to ‘depolarise’ the debate about international law, before promptly comparing those who are open to withdrawal from the European Convention on Human Rights (ECHR) with Carl Schmitt, the notorious German jurist who joined the Nazi party in 1933. If Lord Hermer’s intention truly was to lower the political temperature, and to help to broaden the base of support for the government’s approach to international law, his speech must be judged a failure. Perhaps his choice of words was simply clumsy, as he has since said, although the text as a whole suggests otherwise.
Lord Hermer’s approach to international law is incompatible with our political history and constitutional tradition
The Attorney’s speech mentions Schmitt, and a Schmittian approach to the rule of law, four times, linking him not only to the Nazis but also to Putin’s aggression against Ukraine. Carl Schmitt is not, mercifully, a household name in Britain but he does still feature in scholarly debate, often when an academic lawyer wishes to smear his or her opponents without evidence or argument. Tim Owen KC and Lord Macdonald KC, two liberal lawyers in good standing, rightly decry this tactic in their podcast, Double Jeopardy, in conversation with Lord Wolfson KC, the shadow Attorney General.
Despite Lord Hermer’s willingness to play the Schmitt card, we should welcome his thoughtful exposition of the legal underpinnings of ‘progressive realism’. Ministers and law officers should think deeply and write clearly; this speech warrants close attention.
The RUSI lecture is framed around a contrast between two ‘temptingly simple narratives’ about international law – the ‘romantic idealists’ on the one hand and the ‘pseudo-realists’ on the other. Both narratives, the Attorney tells us, ‘misunderstand our history’, ‘misunderstand international law’ and are ‘reckless and dangerous’. The argument of the lecture is that the government’s commitment to international law is the golden mean between these two dead ends.
The argument is preposterous, first because Lord Hermer has set up a straw man in the ‘pseudo-realist’ position, and second because he very obviously is a ‘romantic idealist’ about international law.
Lord Hermer’s Bingham Lecture in October last year made clear his unwavering commitment to international law and his conflation of this commitment with the ideal of the rule of law. So too his speech in the Lords in November last year. His expansive, undisciplined account of the rule of law was challenged by a succession of legal peers.
The centrepiece of Lord Hermer’s RUSI lecture is an attack on the idea that one can adopt a pick and mix approach to international legal obligations. This approach, Lord Hermer warns us, will lead to the disintegration of international law and the triumph of Putin – and of Schmitt. There are many problems with this line of argument. Notably, it is routine for states, including Western states in good diplomatic standing, to sometimes fail to comply with some of their international legal obligations, say under double tax treaties or international trade law or international conventions on drug use. This does not somehow license or legitimise international aggression.
Lord Hermer fiercely opposes withdrawal from the ECHR, as does the Prime Minister, although the logic of his position is that if a member state is unhappy with the Strasbourg Court’s decisions then it should withdraw. It would be interesting to know whether he opposes withdrawal from international agreements in principle. As Lord Hermer was speaking at RUSI, General David Petraeus (retired), the great American soldier, was addressing Policy Exchange on the subject of land mines and cluster munitions, strongly supporting Policy Exchange’s argument that the UK should withdraw from treaties on them in order to strengthen our deterrent capacity.
Many questions arise. What does Lord Hermer make of Nato states bordering Russia, who fear Russian aggression, withdrawing from these treaties or thinking seriously about doing so? If the government’s position is that the UK should remain subject to these treaty commitments, and should criticise our allies for withdrawing from them, then progressive realism would seem to fail at the first hurdle, viewing international law through the romantic, absolutist lens that Lord Hermer purports to avoid and failing to protect the UK’s national interest. Ironically, on Lord Hermer’s analysis it would seem to be Ukraine – fighting for its life and using land mines despite its treaty commitments under the Ottawa Convention – that is guilty of pseudo-realism. In Lord Hemer’s world, Zelenskyy would have to join Lord Wolfson as a fellow Schmittian.
Lord Hermer’s approach to international law is unconstitutional. His attempt to assert that ministers (and possibly civil servants) have a constitutional duty to comply with international law is flatly incompatible with our dualist legal order, which disables ministers from bypassing Parliament. Lord Hermer quotes his predecessor, Dominic Grieve KC, who is said to have defended such a duty by saying that ‘it is Her Majesty’s intention that her servants should observe the binding agreements that her previous servants have entered into’. But the King’s intentions do not determine the constitutional duties of the ministers on whose advice the King is constitutionally obliged to act.
International law is important and ministers and Parliament rightly take it seriously. One should keep one’s promises and it would be unconscionable to enter into an agreement intending not to comply with its terms. But international law is a more complex, interesting and challenging body of law than Lord Hermer’s ‘temptingly simple’ narrative would suggest. Not every international obligation is made equal and it has always remained open to sovereign states to determine when or whether to comply with a particular obligation, a calculation that should of course consider the relative importance of the obligation and the likely reaction of other states. And in a democracy, it must remain open for elected parliamentarians to deliberate about the national interest, to which international order is highly relevant, and to decide what must be done.
The obvious risk with Lord Hermer’s approach to international law is that it sacrifices self-government and the national interest on the altar of unthinking compliance, especially compliance with some international tribunal. The risk has manifested in relation to the government’s decision to cede the Chagos Islands to Mauritius, abandoning a principled legal position and the UK’s vital strategic interests for the good opinion of Philippe Sands KC and other public international lawyers.
One sees a similar muddle in the Attorney’s approach to the International Criminal Court’s arrest warrants against Prime Minister Netanyahu, where the government looks set to breach the International Criminal Court Act 2001 and customary international law, because it cannot contemplate disagreeing with the Court itself.
Lord Hermer’s approach to international law is incompatible with our political history and constitutional tradition. Whatever happened to social democracy and the life and liberty of British people being the first goal of British foreign policy? And what do those in No. 10 make of Lord Hermer trying to define the organising goal of British foreign policy a few days ahead of the Strategic Defence Review and a few weeks ahead of a new national security strategy? What they should think is that Hermerism is an irresponsible approach to governing that should be firmly rejected.
Comments