The Left's New Religion
The Cult of International Law & The Riddle of the Chagos Islands
Quite why Keir Starmer’s government is so determined to surrender the strategic Chagos Islands to Mauritius remains a puzzle. The explanations offered keep shifting, but one leading justification is that, were it not to settle the matter through negotiations, the UK would face an adverse and binding judgement from the International Court of Justice.
Yet that would only be so, if the court were to overreach itself. For in February 2017, Britain recognised the ICJ’s “compulsory” jurisdiction, but 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, which has belonged since 1968. 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 advisor to Mauritius. Lord Hermer is Starmer’s Attorney General.
Writing in the Financial Times shortly after Labour’s election victory in July 2024, Sands called for a “real reset” in Britain’s international relations, involving a fundamental break with the lingering imperial hubris that produced Brexit, which takes the form of 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”.
Along the same lines, in his Bingham Lecture at Gray’s Inn in October, Hermer declared that Britain must champion respect for international courts and institutions against “the populists” and exalt international law above its own law. This is necessary to dispel the view in the Global South that the international rules-based order and human rights are “imperialist constructs”. Moreover, he said, “[i]nternational law … helps us move towards a world in which disputes are settled in courtrooms and arbitration centres rather than battlefields”. And then he added, tellingly, handing over the Chagos Islands to Mauritius will “demonstrate our deep commitment to international law”.
That’s the key to the Chagos riddle: while not in fact obliged by the law, surrender would gesture to the world the arrival of a new, humbled, radically ‘decolonised’ Britain.
Law’s authority: important, but not divine
For sure, Sands, Hermer, and the Labour government are right to value international law. But they are naïve 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. Thus, it fosters peace and prosperity.
That is true. But it is also true that the 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, which Raz shares, 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 that it must justify itself before moral principle, was made starkly clear in Europe during the 1930s and ‘40s. For, under Nazi rule abuse and murder on a massive scale were legalised. Reflecting this phenomenon, the German law professor and politician, Gustav Radbruch, wrote a now famous essay in 1946, called “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. “[L]aw,” 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.
Kosovo, 1999: “formally illegal and morally necessary”
One case where the inadequacy of international law persuaded a large number and broad range of states to break it was that of Kosovo in 1999. Here 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 stop 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 have been made to resolve the tension between international law and moral obligation, but 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. Suppose he cannot be dissuaded from this policy by diplomatic or economic pressure. Suppose he restrains himself from invading a neighbour or otherwise posing a threat to regional security. And suppose the politics of the Security Council precludes sufficient unanimity 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 to run its course.
Yet, this is the law in which Lord Hermer and Philippe Sands have such untroubled, absolute faith and to which they would have Britain offer blind obedience. 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”.
The political character of international courts
In 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 that political shaping is limited by the wording of the text 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, more or less tightly.
The appointment of judges to international courts, and the role of political views in their operation, is quite different. Members of the ICJ, for example, are elected by the UN General Assembly and the Security Council, both of which 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”. Aspirations to set up a comprehensive security system through the UN he judges to be “hopelessly optimistic” and an “impossible ideal”. This is because the fault lies, not simply with the unruly behaviour of particular states nor even with the right to veto in the Security Council, but with “deep and enduring problems of world politics”. “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”. Edward Luck, the UN Secretary-General’s Special Adviser on the Responsibility to Protect between 2008 and 2012, agrees: “As an innately political body composed of member states with individual interests …, the [Security] Council’s determinations about … whether a government’s … suppression of some of its population … threaten[s] its neighbors or more distant states … may often be controversial”.
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 is 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. We can gauge the national partisanship of the Russian and Chinese judges by the fact they subsequently supported Russia’s invasion of Ukraine.
No, but with all due respect
The authority of international law is important for peace between states, and peace is important for prosperity. But the law is not divine and does not deserve uncritical worship. It can prohibit effective action to stop genocide and its like. It can be exploited by illiberal states to weaken the power of liberal ones. And it can force a state rightly intent on winning a justified war to defy the law.
So, sometimes states should defy the law. However, since the law remains generally important for international order and peace, defiant states should break it in such a manner as to minimise damage to its authority—that is, not cavalierly or contemptuously, but respectfully. In practice, what this means is that they should make themselves accountable by offering the strongest legal and moral case they can and striving to persuade others states of it. As Gareth Evans, formerly Australia’s 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 twelve 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, the necessity, and the proportionality of the action. That is to say, they have been persuaded by the moral case. In this way the authority of international law is saved. Gareth Evans again: “While it is obviously optimal for any military action to be both unquestionably legal under international law and more or less universally accepted as legitimate (as was the case, for example, with the 1991 Gulf War), it is fair to suggest that military action that is technically illegal but widely perceived to be legitimate (as with Kosovo in 1999) does far less damage than action which is generally perceived to be neither legal nor legitimate (Iraq in 2003)”. Respectful, accountable process may not secure agreement, but it does help to preserve international trust and legal authority in the midst of substantive disagreement.
Back to the Chagos Islands
If the ICJ were to issue a judgment affirming Mauritius’ ownership of the Chagos Islands, the UK government should not blindly comply, naively imagining—as Philippe Sands and Lord Hermer appear to—that the court is impartial. But if the government were to decide to defy the court, it should do so with respect, offering a legal-moral justification in good faith and striving to persuade the persuadable.
As it happens, however, it will not have to do any of that, since the UK has never ceded compulsory jurisdiction to the ICJ over disputes with Mauritius.