The Importance of International Law for Government Lawyers
The Attorney General, Jeremy Wright QC MP's key note address to the Government Legal Service International Law Conference
I am encouraged to see this conference going from strength to strength. I strongly believe that providing an opportunity for lawyers from across departments and across disciplines to learn from each other and to learn from those in academia, the bar and the bench will help us collectively provide the type of informed and pragmatic legal advice that the government needs.
As my contribution to that process I’ve been asked to set out my views on the importance of international law to government lawyers. The breadth of departments that are represented here – I’ve counted at least 18 – highlights just how cross-cutting and integral international law has become in all of our work.
I would, however, also like to take the opportunity to explore a variation on that theme, namely not just > the importance of Government lawyers for international law, but also > International Law for Government Lawyers.
The particular role that states play in developing, forming and upholding international law makes our position as government lawyers a particularly interesting and, at times, challenging one.
I don’t propose to indulge in questions that are posed about international law from time to time - of whether it is really law, whether it really exists or whether it really matters if there is no international legislature or agency to enforce it. It is law. It does exist. And it does matter.
International law binds the UK, both as a central tenet of our constitutional framework and as a distinct legal regime at the international level. The constitutional principle to respect the rule of law and comply with our international obligations is reflected in the Ministerial Code – which applies to me as much as to any other minister. The Code states that there is an > overarching duty on ministers to comply with the law, including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life.
That duty is mirrored in the Civil Service Code and so applies to all of us in government, whether ministers, lawyers or officials.
So just how important is international law? The short answer is, very. I have been struck in my first year as Attorney General just how central it is to the daily work of government.
I think we would all recognise that the days when international law was something of an esoteric specialism of the Foreign Office touching only on rather grand matters of international relations are long gone, if they ever really existed.
Three things strike me about international law in the work of a government lawyer today: first, it is all-pervasive; second, the questions that arise and the context in which they are considered are extraordinarily complex; and, finally, I am struck by the intense scrutiny these legal issues are subjected to by states and courts around the world, academics and the public.
Turning to the first of these - the all-pervasive nature of international law.
It is pervasive in the sense that there are some norms that we cannot resile from or elude – notably the prohibition on the use of force (save in very limited circumstances) or the use of torture.
International law is also pervasive in the sense that it touches on nearly every aspect of our lives and our work as government lawyers, primarily through the European Convention on Human Rights and the treaties of the European Union.
Parliament has transposed those treaties directly into our legal system and they form part of our constitutional structure. But at their heart they are international obligations that we have given effect to in domestic law.
There is a debate on what those obligations should look like or how we should give effect to them in the UK. That is the topic of another (much longer) speech. But a central fact of that debate is a recognition that government must comply with its international obligations, or seek to change them.
International law is also pervasive in the sheer breadth of our work which is governed or, at the very least, influenced by it. There are vast webs of bilateral treaties that determine where we fly, how we invest abroad and how we gather tax.
International trade agreements alone impact on nearly every government department and affect how our businesses across countless sectors operate around the world. Multilateral environmental negotiations are aiming to find a global deal on climate change in December. And our international arrangements with countries around the world help in the fight against serious organised crime and the disruption of terrorism.
And it is pervasive in that these international laws are no longer adjudicated only in discrete specialised tribunals, but are the subject of domestic inquiries and are increasingly at the forefront of legal argument in domestic courts where they consider, for example, the interpretation of the UN Charter, the application of the Geneva Conventions or questions of immunity arising out of the Act of State doctrine.
Second, I am struck by the complexity of international law and the environment in which it is deployed.
As government lawyers we are used to dealing with the complex, distilling the issues and finding a pragmatic solution within the framework of the law. But that is particularly challenging in the realms of international law, where the tectonic plates of the written law, state practice and political realities collide.
Let us take the migration crisis in the Mediterranean as just one example. We have all witnessed the desperate scenes in recent months, with thousands fleeing across Africa and then sent on a perilous journey across the Mediterranean Sea. Unsurprisingly, the plight of these people throws up questions around a vast array of international law issues including, for example, on the law of the sea, the use of force by UK military, EU law, readmission agreements, the application of the refugee convention, UN Security Council resolutions, Article 5 of the ECHR, the Palermo protocol, …. and the list goes on.
This one issue touches on areas of interest to the Home Office, Cabinet Office, Foreign Office and the Ministry of Defence. And layered over that complex web of legal instruments is the dynamic international political context in which the advice is given and the need to take into account the implications a proposed course of action may have on our international rights or obligations elsewhere. So these are complex issues often being considered in the glare of the public gaze.
That takes me onto my third observation – which is the intense public scrutiny that the UK’s actions attract on the world stage and the importance of international law to both frame and defend those actions. No-one doubts, for example, that the actions of those who push migrants from the shores of Libya in boats they know will not survive the journey are abhorrent. But that does not provide the UK or any other state with carte blanche to act. It is not only important that the UK responds to these challenges, but it is equally important how it responds.
That close scrutiny of UK actions – and the importance of the international law which underpins them – was clear in the recent strikes against Reyaad Khan, the British national who was a member of ISIL and who was killed by UK forces because of the threat that he posed to the UK.
As the Prime Minister indicated in his speech to Parliament last month, I was consulted and agreed that this action would be lawful. The government’s position – that this action was lawful under Article 51 of the UN Charter in the self-defence of the UK and the defence of Iraq – has been clearly set out in the UK’s letter of 7 September to the UN Security Council. Our allies, including the United States and France, have explained their actions against the forces of ISIL operating in Iraq and Syria in similar terms.
States are rightly scrutinised very closely in all they do, no more closely than when they take military action outside their borders. In my role as Attorney General, I am clear that the UK must only act where it is lawful to do so. International law sets the framework for that action and the UK must – and does – act in accordance with the rule of international law.
So the importance of international law for government and for government lawyers is clear.
The nature of international law is such, however, that it is also important to consider the importance of government lawyers for international law.
I said recently to the GLS Administrative Law conference that the role of government lawyers is a constitutionally significant one providing, as we do, risk-based advice which circumscribes the legitimate basis for government action. That is just as true for the role that government lawyers play in respect of international law.
Whenever international legal advice is given in government, it is given in the same way as domestic legal advice. Ministers are advised of the legal arguments, the strengths and weaknesses of action, and the legal risks. Where something is plainly unlawful, that is the advice that is given. In this regard, international law is no different from domestic law.
However, unlike domestic law there is of course no international legislature as such when it comes to international law. With domestic law, a government may have a particular policy in respect of a particular issue and Parliament may legislate as a response to that issue. This process is considerably more complicated at the international level, where the sources of international law are more diffuse including, for example, the practice of states, the general principles of law recognised by civilised nations or the teachings of highly regarded publicists. And unlike domestic law, whilst there is some scope to consider international legal questions before domestic and international courts, that is not often the case when it comes to determinations of international law.
The role of the government lawyer is therefore a particularly important and challenging one when it comes to advising on the application of international law. I have often heard government lawyers described in this context as the gatekeepers of international law. I have spent the first year in my job as Attorney General encouraging the government legal profession that I lead to be seen as enablers rather than gatekeepers; for lawyers to be universally known in government as > problem solvers.
That applies equally to government lawyers advising on international law. In the international sphere – without a legislature akin to Parliament and without ready recourse to the courts – the government lawyer is in a unique position. We are often at the front line of making both the legal and political case for international law. As government lawyers who help ground decision-making in the international rule of law we have a crucial role to play in ensuring that the short-term and expedient solution to any given problem –which may be legally arguable - is set in the wider political and legal context that protects the UK’s longer-term interests in having a responsive but robust international legal system.
And legal advice in this area should not be dogmatic. As government lawyers we rarely deal in absolutes but are in the business of providing risk-based advice that reflects the context in which it operates. And international law itself is not static. Customary international law is often developed organically over time.
This inherent flexibility of international law is perhaps one of its most significant qualities, and a reality with which we all have to grapple as government lawyers. In my view, the flexibility of international law is a positive thing and ensures that it is able to adapt to changing scenarios and needs. As society changes – and new values and norms develop - international law also has the scope to develop to meet these changing needs. Any lawyer, especially one in government, must recognise the need for law to serve society, and international law is no different. For international law to meet the needs of the rule of law and to avoid being dismissed and marginalised, it must develop to meet the needs of the international community which it is serving.
Given that international law is shaped, in significant part, by what states do and a clear understanding of why they do it, what government lawyers advise and the impact that has on the actions of states is central to the development and ‘enforcement’ of international law.
A good example of this is the doctrine of humanitarian intervention, relied upon by the UK government for military action in the Iraqi No-Fly Zones and for the UK’s participation in the Kosovo air campaign. The UK government took the position that in certain limited and exceptional circumstances, military force could be used in order to avert an overwhelming humanitarian catastrophe. This is not, of course, an uncontroversial position, but it has been the view of successive UK governments over a number of years.
This is a clear example of State practice with a clearly expressed rationale can ensure that international law develops to meet changing circumstances and provide a framework for action in this area. The international law on the use of force must, and has, developed in order to ensure that States are not forced to stand idly by while we see a repeat of what happened in places like the Balkans, with systematic and ruthless ethnic cleansing, or Rwanda, where genocide took hundreds of thousands of lives.
The UK government has consistently said that international law does permit limited action to be taken for the relief of humanitarian suffering - a basis deduced from state practice, and from fundamental principles such as that of necessity. And the UK government has set out the criteria it applies when considering such intervention, described the strict principles that limit its actions and aims and set out clearly how those criteria have been met.
The role of government lawyers has been central in developing, applying and advocating this doctrine of humanitarian intervention and making clear it is not simply about having moral legitimacy – though surely that exists – but that it is bound by law.
And the role of the government lawyer in the process of upholding and developing international law is often a pivotal one – at the intersection of applying international legal principles; facilitating state practice; and articulating why states act as they do.
So ….. international law is both important and integral to the work of government lawyers, but as government lawyers we also play an important role in the promotion and development of international law.
International law still helps to govern the peaceful coexistence of nations, but it is also an increasingly important part of what governs the lives of those in the United Kingdom and of our citizens around the world. That puts government lawyers very much on the front line: whether it is in helping to promote British interests abroad or to protect our safety at home.
As government lawyers we often stand at the crossroads between international and domestic law and between legal and geopolitical considerations. We need to understand these different forces at play and to master them to provide the very best principled and pragmatic legal advice to ministers.
… Which brings me back to where I started - that I am delighted to be a part of this conference which, as I said at the start, promises to be another big step in providing the incisive, practical and contextual legal advice that the government needs.