International Law in the UK – Or Maybe Not?

by Jan Klabbers

For those of us living in the US, it is sometimes difficult to realize that interesting international legal events may also occur elsewhere; for instance, in the UK. Yet, times in the UK are very interesting indeed. This week alone the newspapers were filled with reports on the questioning of senior UK Foreign Office lawyers concerning the legality of the 2003 invasion of Iraq (nutshell: they thought it was illegal; the attorney-general wavered a bit, and their political taskmasters went ahead anyway). Hopefully, you’ll find the link to one of the many stories here: http://www.guardian.co.uk/uk/2010/jan/26/chilcot-inquiry-iraq-invasion-lawyers.

Second, the UN’s special rapporteurs on terrorism and human rights and on torture (Martin Scheinin and Manfred Nowak, respectively) reported that the UK may well have been engaged in acts of torture in connection with the proclaimed war on terror. The link: http://www.guardian.co.uk/world/2010/jan/27/britain-complicit-possible-torture-un.

While others might use the opportunity to engage in all sorts of ironic statements involving words such as birthplace and Rule of Law, I shall refrain from doing so (I learned my irony lesson last week…). Perhaps though there is a minor lesson here for all those who so warmly welcomed the ‘legalization’ of global politics a decade ago: maybe the legalization of world politics has some distance to go still. That is not to embrace simplistic realism of the Goldsmith/Posner variety, but it is to suggest that the creation of all sorts of nice courts and tribunals and increased rule-density remain ineffective unless people and the institutions they run are somehow keen to actually implement those rules and render those courts and tribunals effective, even when politically inexpedient, or when the interests of their voters and businesses are not directly at stake. Judging by the UK experience, there seems to be little reason to be overly hopeful.

http://opiniojuris.org/2010/01/28/international-law-in-the-uk-or-maybe-not/

2 Responses

  1. Hitting the nail on the head as usual Jan.

  2. Plainly correct not to be too hopeful about proper respect for international law just yet. But perhaps there are two mildly positive aspects of the current Iraq inquiry in London:

    First, the focus at the inquiry on looking for ways to take better account of international law in the future may be a small step in the right direction.

    Second, there may be some scope for international lawyers to offer a more coherent model. Take, for example, the divide between the legal advisers and the Attorney General over what to take into account when interpreting a Security Council resolution (transcripts of Wood, Wilmshurst and AG at http://www.iraqinquiry.org.uk/transcripts.aspx). If there were a framework of principles for this akin to that for interpreting  treaties, would even the most ardent disciple of Professor McDougal’s approach accept it as admissible to place great weight on the personal recollection of one or two negotiators as to what they believed to be the understanding of a third negotiator, without any of this being properly recorded as preparatory work?

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