Quite why Keir Starmer’s government is so determined to surrender the strategic Chagos Islands to Mauritius remains a puzzle. The sands of explanation keep shifting. Still, a leading justification has been that, were it not to settle the matter diplomatically, the UK would face an adverse and binding judgment from the International Court of Justice (ICJ).
That would only be so, however, if the court were to overreach itself. For in February 2017, Britain recognised the ICJ’s compulsory jurisdiction only over disputes other than those “with the government of any other country which is or has been a Member of the Commonwealth”. Such as Mauritius.
The government’s justification is a smokescreen.
But a smokescreen obscuring what? The answer lies in statements made last year by two of the prime minister’s close associates, Philippe Sands, KC, and Richard Hermer, KC. Sands, who claims Starmer as “a great friend”, has acted as a paid legal adviser to Mauritius. Hermer is Starmer’s attorney general.
Writing in the Financial Times shortly after Labour’s election victory last July, Sands called for Britain to reset its international relations by jettisoning the lingering imperial hubris that produced Brexit and substituting an unreserved commitment to the rules-based order of international law and institutions. “The days of ‘international law for others’ are over,” he wrote. “Britain has to be ready to be held to account for actions present and past, whether they be historic emissions of greenhouse gases, or slavery and other acts of colonial wrong-doing, or for waging illegal wars or turning a blind eye to manifest violations of international law by an ally.”
Similarly, in October’s Bingham Lecture at Gray’s Inn, Hermer declared that Britain must champion respect for international courts and institutions against “the populists”, exalting international law above its own law, in order to dispel the Global South’s view that international order and human rights are “imperialist constructs”. In another speech, he said that international law “helps us move towards a world in which disputes are settled in courtrooms and arbitration centres rather than battlefields”. Tellingly, he argued that handing over the Chagos Islands to Mauritius will “demonstrate our deep commitment to international law”.
So, that’s the key to the Chagos riddle: although not in fact obliged by law, surrender would signal to the world the arrival of a new, humbled, radically “decolonised” Britain.
Of course, Sands, Hermer, and the Labour government are right to value international law. But they are credulous in worshipping it.
Like any law, it serves the common good by ordering relations between its subjects, prohibiting injustices, threatening sanctions against violators, dispelling fear and generating confidence. It fosters peace and prosperity.
But, again like any law, international law is not divine and the moral obligation to obey it is conditional. According to the renowned legal philosopher Joseph Raz, there is no general moral obligation, applying always and everywhere, to do what the law requires simply because the law requires it. Indeed, it is “morally pernicious” to “suggest that every individual is inevitably obliged to obey the law of his society regardless of how good or bad that law may be”. The view dominant among philosophers is “that the obligation to obey the law is not violated when an offence is committed in circumstances where there are strong moral reasons for committing it”.
That law should not be the final word, and must justify itself before moral principle, was made starkly clear in Europe during the 1930s and 1940s. Under Nazi rule, abuse and murder on a massive scale were legalised. Reflecting on this, the German law professor and politician Gustav Radbruch wrote an essay in 1946 titled “Legal Injustice and More-than-legal Justice”. In this he argued that there can be cases where the discrepancy between law and justice reaches such an intolerable degree that the former must be deemed morally wrong. “Law,” he wrote, “can only be defined as an order and statute, whose very meaning is precisely to serve [more-than-legal] justice.” Referred to as the “Radbruch Formula”, this view has been applied many times by both the German Federal Constitutional Court and the Federal Court of Justice, originally in cases concerned with Nazi crimes.
One case where the moral inadequacy of international law persuaded a large number and broad range of states to break it was Kosovo in 1999. There the “ethnic cleansing” of Kosovar Muslims by Serbian forces was not only causing severe human distress on a massive scale; it was destabilising the region by sending refugees pouring into an ill-prepared Macedonia. Eventually, Nato, led by a reluctant US, decided to intervene militarily to prevent a growing humanitarian and regional crisis.
It did so, however, in violation of international law. According to the UN Charter, except in the case of self-defence, the use of armed force must be authorised by the UN Security Council. In this case, authorisation was not sought, because it was known that Russia, one of the council’s permanent five members, would have vetoed it. Nonetheless, according to the eminent Finnish professor of international law Martti Koskenniemi, “most lawyers—including myself—have taken the ambivalent position that [Nato’s intervention] was both formally illegal and morally necessary”.
Since then, attempts to resolve the tension between international law and moral obligation have been in vain. So, as it now stands, international law could forbid military action necessary to stop genocide. Suppose a Hitler decides upon a Final Solution for a minority group within the borders of his own state, cannot be dissuaded from this policy by diplomatic or economic pressure, and restrains himself from invading a neighbour or otherwise posing a threat to regional security. And suppose the politics of the Security Council precludes agreement to enable armed intervention by an authorised body, because one of the permanent members would veto it. Then international law, as we now have it, would require states to let the Final Solution run its course.
Yet this is the law in which Hermer and Sands have such untroubled, absolute faith and which they would have Britain blindly obey. As Sands wrote in the Financial Times: Britain should “make good on its commitment to the rules prohibiting military force except by way of self-defence or where genuinely authorised by the UN Security Council”.
It is not only in the Security Council that states can abuse the law to serve national interests. That happens in international courts, too.
In many democratic countries, such as the UK, judicial appointments are apolitical. And even though judges’ personal political views are bound to shape their legal reasoning, the extent of their shaping is limited by the wording of the law. Moreover, insofar as that law is created by a legislature responding to a particular problem—and not by judges exploiting the ample room for discretion afforded them by charters of abstract rights—that text will define the law and constrain the political element in its interpretation tightly.
The appointment of judges to international courts, and how their political views affect their work, is quite different. Members of the ICJ, for example, are elected by the UN General Assembly and the Security Council. Both are highly political bodies in which national interests play a large part. As Adam Roberts, former Montague Burton Professor of International Relations at Oxford, has observed, “the era since 1945 has witnessed—alongside the new institutions of the United Nations and the multilateral diplomacy that it embodies—the continuation of all the classical institutions of the international system: great powers, alliances, spheres of interest, balances of power and bilateral diplomacy”. He judges aspirations to set up a comprehensive security system through the UN to be “hopelessly optimistic” and an “impossible ideal”. “The Security Council”, he writes, “is not an impartial judicial body, but a deeply political organisation” whose members have “very different perspectives on the world and the threats it faces”.
Therefore, when considering whether to yield to the judgments of the ICJ, it is important not to be politically naive. We should bear in mind that when, in 2019, the court issued its Advisory Opinion on the Chagos Islands, judging them to be integral to Mauritius, it did not include a UK judge. What’s more, it did include representatives from Russia and China, both of which have very strong national interests in seeing Britain’s prestige and security weakened. Their national partisanship can be gauged by the fact that the Russian and Chinese judges subsequently supported Russia’s unprovoked invasion of Ukraine.
International law isn’t divine and it doesn’t deserve blind obeisance. It can prohibit effective action to stop genocide, and it can be cynically exploited by illiberal states to weaken the power of liberal ones.
So, sometimes states should defy it. Yet, because the authority of international law is important for peace between states, and peace is important for prosperity, defiant states should break it in such a manner as to minimise damage to its authority. They should defy it, not cavalierly or contemptuously, but respectfully. What that means is that they should make themselves accountable by offering the strongest legal and moral case they can and striving to persuade other states of it. As Gareth Evans, a former Australian foreign minister, has written: “The effectiveness of the global collective security system, as with any other legal order, depends ultimately not only on the legality of decisions but also on the common perception of their legitimacy: their being made on solid evidentiary grounds, for the right reasons, morally as well as legally.”
Adamantly hostile states, of course, will never be persuaded. Others, however, might be. In the case of Kosovo, the Security Council had been unable to authorise Nato’s intervention because Russia threatened to cast its veto. However, when Russia subsequently proposed a resolution condemning the intervention, the Council refused by a vote of 12 to three. Nato’s action, then, was at once not expressly authorised and yet expressly not condemned by a majority of four to one. When the Security Council itself refuses to condemn unauthorised intervention by such a margin, we may infer that a majority of states have been persuaded of the humanitarian motivation, the public-spiritedness, and the necessity and proportionality of the action. That’s to say, they have been persuaded by the moral case. In this way the authority of international law is saved. Respectful, accountable process may not secure agreement, but it will help to preserve international trust and legal authority in the midst of substantive disagreement.
Sands and Hermer seem to imagine that international law is the Final Word, beyond which no moral appeal can be made, and that courts such as the ICJ are impartial, public-spirited bodies. That is a fantasy of astonishing naïveté. And it’s a dangerous fantasy, to boot, for it would put liberal Britain at the mercy of unscrupulous manipulation by illiberal China.
So, if the ICJ were to issue a binding judgment affirming Mauritius’s ownership of the Chagos Islands, the UK government should not comply blindly. Nonetheless, its defiance should be respectful, giving a legal-moral account of its action and striving to persuade the persuadable.
As it happens, however, it will not have to do any of that, since the UK never ceded jurisdiction to the ICJ over disputes with Mauritius in the first place.
