A selective, or ‘pick and mix’ approach to international law will lead to its disintegration, the attorney general warned yesterday in forthright attack on calls for the UK to withdraw from the European Convention on Human Rights and other international treaties.
In a speech citing Bismarck's 'blood and iron' doctrine as well as Nazi jurist Carl Schmitt - 'whose central thesis was in essence the claim that state power is all that counts' - Lord Hermer (Richard Hermer KC) criticised what he called 'pseudo-realists'.
'The argument that the UK can breach its international obligations when it is in the national interest to do so, is a radical departure from the UK’s constitutional tradition,' he told the Royal United Services Institute. 'This isn’t Conservatism, this is radicalism, which stands completely at odds with that proud constitutional history in this country.'
Asking who benefits if the framework of international law fails, he said: 'The answer is obvious – it is our enemies who succeed. It is obvious that Russia and other malign state-actors see the undermining of the legal based framework as a core objective. Putin does not simply apply a Schmitt-ian approach to the rule of law within the boundaries of Russia and its proxies, he recognises the huge strategic advantage that would flow in undermining the post 1945 international law framework.'
Hermer distinguished the government's doctrine of 'progressive realism' from that of 'romantic idealists' and 'pseudo-realists' - both of which are 'not simply wholly naïve but dangerous', he said. 'We recognise that international law cannot stand still and rest on its laurels. It must be critiqued and where necessary reformed and improved. Nothing I have said here is intended to shield international rules or treaties from evidence-based criticism or proposals to reform. Nor do I argue for one moment that the international law system covers every problem.'
On this theme, the UK has shown 'time and again' that reform is possible and institutions can be reformed. For example, the UK led the renewed focus on subsidiarity in the European Convention on Human Rights 'reminding both states and the international institutions that the primary responsibility for upholding human rights rests on national authorities, and that the role of the court is a supervisory one which only need be invoked when the national system for protecting those rights has failed'.
'That focus on subsidiarity, properly understood as a duty on states to implement, revives the importance of political discussion and debate about human rights which is so vital to preserving their democratic legitimacy. International law cannot and must not replace politics.'
Progressive Realism, internationally, 'is above all the assembling of the necessary coalitions to tackle our current challenges', Hermer concluded. 'Negotiations, driven by politics and diplomacy, and then knitted together in law, are the answer. You cannot have one without the other, at least not in a way that provides sufficient certainty or sustainability.'
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