Boris Johnson's proposal to break international law 'in a specific and limited way' has sparked uproar. But do you remember when the UK broke the Geneva Convention? Oh. Well we did. The government-ratified Geneva Convention on the Sea came into effect in Britain on 10 September 1964. From then the UK was bound forever by the treaty and bound by international law. On 25 September 1964, we were not. No explanation was given. No explanation was asked.
Our Judge who ruled in favour of the government when it broke the Geneva Convention of the Sea, said this:
'the Crown [The Government] has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before'.
That Judge became Lord Diplock and he was, one of our very best judges. He was utterly silent on whether or not he thought that example of breaking international law was good or bad – silent because it is a question of politics. Obeying this law is part of our Rule of Law. In a way some may find confusing, that may mean we must obey this law – that we can break international law.
Most of us know the experience. At a party or at the school gate, someone says 'I really must tell you my political opinion'. Though the eyes may thin a smile is forced. The words 'must you?' are never said out loud.
It had been the policy of lawyers to avoid politics when discussing the law – to be free to give a personal political opinion of course, but to also keep our legal opinions free of our politics. It is extremely difficult to do regarding international law. What then is a possible solution?
There are endless examples of breaches of international law by the 193 nations. The UK is, rightly, one of the good guys. It is my view that the solution is to simply copy Germany. Germany’s constitution puts international law on the highest footing – at least expressly, because if I am right and ours moves to copy it them then ours will too.
But what matters for our purposes now is that the EU have taken no steps to sanction or reprimand Germany. Certainly, no steps in law have been taken against them at all. Germany has not modified its constitution as a result, it has maintained its position in law. That makes it important as a matter of law; not merely as a matter of politics.
The case was that Germany, with its unimpugnable commitment to international law, found as a matter of principle that it can over turn international law (break it), if an international law obligation asked Germany to do something which was a fundamental breach of its constitution.
Now, this is not the same as the other arguments and is not politics. This is going back to our practice of law. For 800 years when faced with a novel legal problem we have looked to previous cases to find the legal solution. As I said, I think we have one domestically with Lord Diplock. But if I am wrong there, then we certainly have one in the German FCC case.
When we look for previous cases to copy, it is normal to look to other countries – in my area involving complicated issues around money/trusts/equity we often look to Australia. It is true to say we do not look to civil law jurisdictions, which is what Germany is, quite so often. But I see nothing in principle wrong with looking to Germany for guidance on how the UK should both best honour international law and protect our constitution.
These issues you see are about Constitutional Law. They are about how the UK treats our own constitution – about how we behave regarding international law. We have not looked at these questions for some time.
If we are going to find a legal solution, long term and to depart from the Lord Diplock view, then let’s look to an established Western Democracy who has, it is fair to say, put more time and effort in to its constitution than we may have done in recent years.
In practice that would mean modifying the Diplock line to say, as Germany does, the UK will uphold international law in principle, but break international law if it conflicts fundamentally with our constitution.