Category: International law

What explains the timing and manner of the Chagos Islands sovereignty deal?

20th October 2024

Towards resolving a puzzle about how and when the decision was announced

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Perhaps the best place to start for a blogpost or any other writing is a sense of puzzlement. A thing does not immediately make sense, and so you find out more and try to work it out.

The news about the Chagos Islands provided such a puzzle.

Why did the United Kingdom this month decide – if that is the correct word – to transfer sovereignty of the Chagos Islands to Mauritius?

Over at Prospect is an attempt at answering this question. Please click here and read the post.

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That this has been a long-lasting dispute is not, by itself, a reason for it to be resolved. Disputes can last a very long time and may never be resolved.

And that the United Kingdom was on the backfoot both legally and diplomatically also, by itself, did not explain the move.

The United Kingdom – if it was able – would have carried on playing for time.

So what happened?

Well it looks like the matter was taken out of the hands of the United Kingdom – even though it is nominally the sovereign power.

The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.

What prompted this explanation was something said in the House of Commons debate by the Speaker – which seemed more significant than anything said by minister or backbenchers (emphasis added):

This indicated that this excuse had been given to him by the Foreign Office – either by the minister himself or by a civil servant.

And although, of course, there are upcoming presidential and congressional elections in the United States, there happened to be a general election coming up in Mauritius.

Taking this evidence along with the (very) warm, detailed statement from the United States indicated that both Mauritius and the Unites States were well prepared for this news, even if the United Kingdom was not:

The lack of preparatory media briefing (and leaking) by the United Kingdom government also then made sense. Usually there would be attempts to frame such upcoming news, especially if it looked bad for the United Kingdom.

And because the United States were (so) happy with the news, this rather took the wind out of the sails of those who have been warning that transferring sovereignty would be against American interests or undermine the strategically important base on Diego Garcia.

Warnings such as this one from Johnson in 2023:

An article which, if you read carefully, shows that the former foreign secretary (and prime minister) had an inkling that such a direct deal was in the offing (emphasis added):

The problem is that the highlighted admission rather undermines the alarmism of the article’s title. The Americans were relaxed about a direct deal as long as they retained a long lease for their base.

And it seems the Johnson article correctly describes that the Mauritians and the Americans indeed cut out the “middleman” – and that is the role to which the United Kingdom was reduced, even though we were (nominally) the sovereign power.

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A look at the relevant public domain materials also shows how weak the United Kingdom’s position was becoming.

A little-known 2015 arbitration ruling was devastating in its detail:

(Legal geeks may appreciate how that tribunal deals with estoppel in paragraphs 434 to 448.)

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It was also striking how support for the United Kingdom fell away once the International Court of Justice delivered its 2019 “advisory” opinion.

In 2017, the United Kingdom had a plausible-sounding nod-along objection to the court taking on this case.

But once the court handed down its opinion, it seemed that plausible objection fell away. Support vanished.

Even most commonwealth members, as well as other former colonial powers and/or European Union member states, could not bring themselves to vote with the United Kingdom.

The United Kingdom had been shown to the UN assembly to be in breach of its general decolonisation obligations: and so this was not just another bilateral territorial dispute.

And so the United Kingdom’s position was legally and diplomatically weak: so weak that, at a time of the choosing of Mauritius and the United States, a supposedly sovereign power had to announce during recess it was ceding sovereignty.

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This week’s skirmish between the European Commission and X

17th August 2024
Law and politics are ultimately about how power is allocated and exercised within a given complex society. In particular, law and politics are about how such power is legitimised and about how it is checked and balanced.

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

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These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

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When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

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Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

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What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

15th December 2023

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Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right

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You may or may not remember Abu Qatada and how he once featured in British politics.

About ten or so years ago, he was the Rwanda policy of his time.

The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.

But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.

And how the politicians and the media fumed.

The headlines seem somewhat familiar:

But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.

And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.

That word was torture.

In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.

This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.

Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.

But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.

In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:

Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.

And what then happened?

Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:

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Ten years or so later, we are repeating the same sort of story.

The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.

But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.

The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.

As the Supreme Court set out in the recent appeal judgment:

Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.

But in both cases that is the necessary – inescapable – implication of their position.

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Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.

In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.

But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:

Again: reform and compliance, rather than confrontation.

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Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.

And that omission is – or should be – a tell.

It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.

They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.

No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.

And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.

You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.

Using ugly situations as the means to attack human rights law indicates that there is something else going on.

It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.

But that bit is usually left unsaid.

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On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

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I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

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Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate.  It would not have been relied upon had the government been actually serious about this policy.

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I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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Proportionality is an incomplete legal concept

25th October 2023
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The legal(isitic) concept of proportionality does not exist in a vacuum, for it is a term for the relationship between means and objectives
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There is an old line shared by English lawyers that, for the High Court, domestic law is a matter of law, foreign law is a matter of fact (on which the court may take expert evidence), and international law is a matter of fiction.

And for those who take the (not entirely unreasonable) view that law needs to be capable of enforcement so as to be termed “law”, the nature of international law is problematic.

(Here we mean what is called “public international law” – the law which in general applies to state and international actors, rather than “private international law” which is about cross-border transactions and other private law relationships.)

One can say [A] or [B] is in breach of international law, but unless there is a court or tribunal of competent jurisdiction available and capable of determining the question, statements about international law can just seem like many assertions and expressions of opinion.

But, even if there is no likelihood of any case ever reaching a court, states often say they have regard to international law in what they do.

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The current news from Israel and Gaza raises the question of compliance with international law.

Many have strong views on what is happening in Israel and Gaza.

The best explainer I have come across (via David Anderson on X/Twitter) on the application of international law to what is happening in Israel and Gaza is this one.

And you will see that the key concept here is one of that most tricky of all legal notions, proportionality.

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The only point this general legal blog can add is that the legal(istic) concept of proportionality does not exist in a vacuum – a thing is not, at law, proportionate or disproportionate in and of itself, for the concept describes a relationship between things.

The concept of proportionality makes legal sense (if it makes any legal sense at all) when it is applied to the relationship between means and an objective.

The legal concept of proportionality will then provide a way of assessing whether particular means go further than necessary in meeting particular objectives.

Of course, this tells you nothing about the merits of a proposed action and of the legitimacy of an objective.

And so it is a legal concept, in public international law and other areas of law, which can raise questions rather than answer them.

But if one has a view on whether what any state actor is doing is proportionate or disproportionate under international law then one also has to be as precise as possible as to the actual means and to the specific objectives to which the concept is being applied.

And some will say that some means may never be proportionate to any legitimate objective.

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Only on-point (and sensible and constructive) comments will be published below – there are other places on the internet for other comments.

An Arrest Warrant for Vladimir Putin

17th March 2023

Today an arrest warrant was issued for the arrest of Vladimir Putin.

This warrant was issued by the International Criminal Court.

On the face of it, the jurisdiction of that court in this matter is not obvious.

Neither Russia nor Ukraine are signatories to the Rome Statute, which established the International Criminal Court and provides for the jurisdiction of the court.

(And nor are, for example, the United States and Israel.)

But it seems that not being a signatory is not a barrier.

According to the court’s site, “Ukraine is not a State Party to the Rome Statute, but it has twice exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, pursuant to article 12(3) of the Statute”.

It would appear that a mere declaration – as distinct from signing, let alone ratifying, the Rome Statute – is enough to confer jurisdiction.

Article 12 of the Rome Statute provides:

One can see how this joins the legal dots so that there is jurisdiction for a warrant to be issued.

Somewhere there is, no doubt, a paper copy of Article 12(3) with a big tick next to it.

But this, of course, will not be enough for the Russians to cooperate.

There is currently zero chance of Putin being arrested.

This should not surprise us.

For, unlike equity, international law often acts in vain.

In large part, that is the point of international law – to provide international standards even if those standards are not met

And the politics in Russia can change.

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By coincidence, the last week also saw the 103rd birthday of the last surviving Nuremberg prosecutor, Ben Ferencz.

One of the convictions secured by Ferencz was for an SS officer responsible for mass murders in Ukraine.

That mass murderer was hanged.

All Putin would face is imprisonment.

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The basis for the warrant for Putin is the forced deportation of Ukraine children.

This is a serious matter – but it is, of course, not the only war crime for which Putin is responsible.

It is, however, one of the easiest to evidence – and, indeed, it would appear the facts of the deportations are not disputed.

As such it has a flavour of Al Capone and tax evasion – a prosecution that is evidence-led and thereby more likely to reach a more advanced stage procedurally.

Presumably an arrest warrant needs a sound evidential base, and the forced deportation of Ukraine children provides the requisite evidence.

This certainly not to underplay the importance of the child deportation issue – it is more of an illustration that any practical prosecution will always be a balance between law and evidence.

Perhaps further grounds can be added in due course.

But if this prosecution has any chance of success, then at this early stage doing-it-by-the-evidence as well as doing-it-by-the book is prudent and admirable.

This prosecution may not get any further – but, if it does, it will be in part because the prosecution was properly thought-through at its early stages.

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The failure of Brexit to return real power to Westminster: a worked example

16th March 2023

Yesterday this blog averred that Brexit so far has been about giving power to Whitehall than giving power to Westminster.

Ministers since 2016 have been using the rhetoric of “taking back control” so as to make government less accountable to parliament.

And today: a worked example:

You may have strong views about Brexit, and you may have strong views about the Windsor Framework.

(This blog has set out why, although the Windsor Framework is a Good Thing, the supposed ‘Stormont Brake’ is more likely to be an ornament than an instrument.)

Yet sensible people would want the Windsor Framework to be be properly considered and scrutinised by parliament.

For that is what sovereign parliaments should be able to do.

But, no.

The government is not giving parliament any adequate opportunity to examine the Windsor Framework.

This is more government by fiat, by ministerial decision.

You may think that is a Good Thing: that our government should be all-powerful between general elections with no or almost no accountability to parliament.

But, if so, do not pretend to others that Brexit was ever about giving power back to the Westminster parliament.

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What is going to now happen with the Bill of Rights?

9th December 2022

You really would need a heart of stone not to laugh like a drain:

This blog has previously compared Dominic Raab’s quest to repeal the Human Rights Act with Captain Ahab’s quest to get Moby Dick.

And it would appear that Raab is going to fail, again.

It looks likely that his “Bill of Rights” – which was to repeal the Human Rights Act and to make it more practically difficult to rely on the European Convention on Human Rights  – will be dropped.

As it is, there has been no legislative movement on the Bill since 22 June 2022, which is now almost six months ago:

The Human Rights Act 1998 will still be there, and Dominic Raab may soon not be.

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But.

Those generally supportive of the Human Rights Act and the European Convention on Human Rights should not be tempted into complacency by the apparent dropping of the Bill.

There are many ways a canny government can subvert human rights protections – subtle, hidden ways.

All that has failed here is a loud and clumsy frontal attack.

In a way, such performative proposals are the easiest to deal with, as they often collapse from their own absurdity.

The Home Secretary Suella Braverman is also no friend of the European Convention on Human Rights, but she and her Home Office of lawyers will come up with less obvious proposals in upcoming legislation.

The convention itself is fairly safe as part of our domestic law, as the Good Friday Agreement expressly requires convention rights to be directly enforceable in the courts of Northern Ireland.

There is thereby little-to-no chance that the convention will be taken out of our domestic law.

And there now seems little chance that the Human Rights Act, which gives effect to the convention in our domestic law, will itself be repealed.

But in the two or so years before the latest date for the next general election – January 2025 – there is a great deal ambitious ministers can do try to do with more focused legislation.

So while we can afford a moment at this festive time of merriment to have a hearty cheer at the apparent failure of the Bill of Rights, we must stop the cheering when the Christmas decorations come down.

And be braced, braced for the new year.

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What does it mean to “take (back) control” of a border?

14th November 2022

Brexit, we are told, was about “taking back control” – of our borders, our money, and our laws.

Yet, if you read the news, it would seem the United Kingdom is less in control of its borders than it was before we departed the European Union.

It would seem that simply declaring that we were “taking back control” was not enough for us to, well, take control.

A less-than-a-moment’s thought should explain why.

It is difficult, if not almost impossible, to have absolute control of a border from one side alone, if a significant amount of people want to cross that border.

In extreme situations, of course, resorting to coercion and lethal force can give the impression of control, at least in the immediate term.

But for there to be effective and sustainable control of a border usually requires those on both sides to cooperate.

As such, the simplistic unilateralism of “taking back control” will not work in practice.

And it is thereby not surprising that the current home secretary has had to agree with France a form of cooperation about the channel crossings.

Though, as Zoe Gardner points out on Twitter, this is not the first time such a thing has been announced:

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Another misconception is that deterring those crossing the channel will work.

That one can remove the “demand”.

That by threatening people with flights to Rwanda or keeping people in horrible conditions the United Kingdom will somehow reduce the number of those seeking asylum here.

The demand seems, to further use economics jargon, “inelastic”.

All that appears to be happening is that, by using various hostile, inhumane and illiberal measures, is that the same number of people are still coming – but we are treating them less well.

The “push factor” does not seem to care about our unpleasant ways.

And there is little that the United Kingdom can do to directly address the “push factor”.

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So what we have are high significant numbers of asylum seekers.

[Word ‘high’ replaced, as some commenters complained it was misleading.]

What should be done?

Well, as Gardner further says, the dealing with the actual claims themselves should be the priority:

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What we can take control of is not our border – but our internal processes, and how well those processes are resourced.

That is what is within our control.

Anything else either requires sincere international cooperation or is outside of our or any other receiving country’s direct control.

And that is control we cannot take – either “back” or otherwise.

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The need for evidence and the Northern Irish Protocol Bill – the background to a rather interesting parliamentary amendment

28th June 2022

One of the most fundamental distinctions in legal practice is that between law and evidence.

Anybody can assert “[X] is guilty of murder” or “[Y] had broken a contract” but mere assertion is not enough for a court.

A court will need to see and assess the evidence that [X] is guilty of murder or [Y] had broken a contract.

And it is only when the evidence is applied to the law, and the law applied to the evidence, that a court will hold (or not hold) [X] to be a murderer or [Y] to be in breach of contract.

Mere assertion is not enough.

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Yesterday in the House of Commons the Foreign Secretary asserted that that the proposed Northern Irish Protocol Bill was ‘necessary’.

The asserted ‘necessity’ justified, the minister claimed, the legislation being brought forward.

Legislation that on the face of it is a breach of international law – and can only only be saved from being such a breach by the doctrine of ‘necessity’.

But.

It is one thing to assert that a thing is the case, and another to show that it is the case.

And so it is with the use of “necessity” by this government to justify bringing forward this otherwise law-breaking bill.

It is not enough for the government to tell us it is “necessary” – they need to show it.

As any competent screenwriter would tell you: show, don’t tell.

One government backbencher, Sir Bob Neill, asked about the evidence which supported the government’s position:

“To return to the legal point, she will know that the application of the doctrine of necessity requires both the legal tests to be met and the evidential base to be there, because it is largely fact-specific to show whether those tests have been met. I know that the Government have been working hard to assemble that evidential base, but can she tell us when it will be available to the House so that we can form a judgment as to whether those legal tests are met and, therefore, proportionality and necessity are met? It would be helpful to have that before we come to a conclusion on the Bill.”

The Foreign Secretary’s response indicated she had missed the point:

“I thank my hon. Friend for that point. There are clearly very severe issues in Northern Ireland, including the fact that its institutions are not up and running, which mean that the UK has to act and cannot allow the situation to drift. I do not think that we have heard what the Opposition’s alternative would be, apart from simply hoping that the EU might suddenly negotiate or come up with a new outcome.”

It is not enough to ask the opposition about what they will do – it is for the government to make out the necessity.

And it is not enough for her to assert that there are “clearly very severe issues” – and as this blog has said before many times, anything described by a politician as “clear” tends not to be.

Neill also asked this question of a former Lord Chancellor, Robert Buckland:

“He refers to the doctrine of necessity and the tests that must be met. I think he will agree that, whether it be imminent or emerging, there has to be evidence that the high threshold is met. Does he think that, in common with the approach adopted in the United Kingdom Internal Market Bill, if there is evidence so pressing as to justify a departure from an international agreement, with the risks that that involves, it should be brought back to this place for the House to decide in a vote? As was then suggested in that Bill, on the evidence available, there should be a parliamentary lock on the use of that important step.”

The former Lord Chancellor also did not have a clue:

“My point is simply that this is not a matter of law or a question of legality. There is a respectable argument that can be deployed by the British Government to assert necessity, but this is not about the law; it is about the evidence that the Government will need to marshal to demonstrate that point. The Government’s responsibility is to be a good steward of the Good Friday/Belfast agreement.”

And the former Lord Chancellor also said:

“…a lot has been said about necessity, as if it requires imminent peril or an immediate threat facing us just outside the door. Nobody is saying that we face that, but necessity in this context does not require that degree of imminence; it requires a degree of real threat, and growing evidence of a real threat to our essential interests. 

“I would argue that there is such growing evidence. Clearly north-south is entirely unaffected—the respect we are showing for the single market is clear—but there is a growing problem when it comes to east-west.”

Buckland asserts there is “growing evidence” but – other than broad generalisations – he cannot point to any.

This is not impressive.

Neill’s comment that there are those in government putting together an evidence base for saying that the bill is “necessary” may be well-informed or it may be, well, charitable.

But it can only be right that the evidence for necessity be made available to Members of Parliament before this bill is passed.

Neill has now put down an amendment for the next stage of the bill’s passage which will require there to be a dedicated vote in the House of Commons before the powers in the bill can be used.

This would mean that a minister would have to come to he House of Commons to make a positive and specific case of necessity before the powers in the bill could be replied upon on the basis of “necessity”.

It would be a wise provision – and there cannot be a good argument against it in the circumstances (though there will be plenty of bad ones).

Strangely, the strongest criticism of the bill in yesterday’s debate came from Theresa May, in a speech that nobody following this blog could have put better – read it in full here.
Of course, this is the same Theresa May whose fateful decisions after the referendum to rule out membership of the single market and customs union led directly to the current botched Brexit.

(And, yes, it it tempting to keep re-fighting the battles of 2016, like a military re-enactment society.)

But here May is spot-on.

It is disappointing, of course, that Neill, May and other government backbenchers did not vote against the principle of the bill at the reading yesterday.

This, however, may owe to the logistics of the exercise of amending the bill at the next stage – they are keeping their various powders dry.

What is obvious, however, is that the government cannot – as of yet – make out the evidence base for “necessity”.

If the Neill amendment is adopted, ministers may be required to put forward their evidence base, if they have one.

And if they cannot put forward the evidence base, then ministers may not be able to rely on necessity.

Their bluff would be called.

And sometimes it is, well, necessary to call the bluff of ministers.

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