Since my original post on the Ministerial Code re-write a small academic storm has broken out about the status of international law in UK domestic law. Pieces broadly adopting the position I adopt have been produced by Professor John Finnis and, Dr Richard Ekins and Professor Verdirame. Pieces adopting the opposite position have been given in reply by Professor George Letsas and, Professor Dapo Akande and Dr Eirik Bjorge. There have been other more neutral posts by Mr Conor McCormick and Professor Mark Elliott.
I am wholly unconvinced by the arguments given that international law as such is binding upon ministers. The three errors that I see are as follows.
Error 1: International Law is a source of the common law, therefore it is part of our domestic legal order, therefore it is binding on ministers
There is no sovereign or Parliament that lays down the international law that binds states. The rules that there are have three sources.
The first is our reason. We know that it is wrong to attack other people. If you require proof of this proposition I suggest you return to reading twitter. This entails that it is wrong for one state to attack another. We know this before there is any custom or agreement establishing it. It just is.
This alone would not provide us with any clear set of rules. The second source, as with any primitive set of rules, is custom. We look to past behaviour as between states to determine what the rules are. Once past practice has established when one state is permitted to act, say in pre-emptive self defence, this acts as a guide for future behaviour.
Custom alone is never very satisfactory as a source of law. Customs possesses no mechanism for alteration, and may not cover new circumstances. In the modern era the third, and by far the most important source of international law is agreement. The UN Charter and the various treaties the UK has entered into are now the most significant source of the UK’s international legal obligations. Pacta sunt sevunda: agreements are to be kept.
In a way therefore, the moral force unpinning international law is stronger than for domestic law rules. We are bound by domestic law whether we like it or not. We have the rules imposed upon us externally by a sovereign legislature, who may or may not be benevolent. International law by contrast is either the minimal set of rules required for states to co-exist, given determinatio by custom, or rules that have been freely entered into by those states.
Professor Akande and Dr Bjorge rely upon an obiter dictum of Lord Mance for the proposition that
unless there is a good reason for not doing so, customary international law will be incorporated into the common law and applied by the court.
In fact, Lord Mance was careful to say no such thing. Indeed, it is impossible to imagine how such a statement could be true.
An example. The United Kingdom is under a duty under international law not to invade France. What would be the position under United Kingdom domestic law if it did so? Could France obtain redress before the United Kingdom courts either before or after the unlawful military intervention took place?
Of course not. It is just wrong to think that there is a 1:1 read across of international law into the United Kingdom domestic legal order. That would be not only inappropriate but meaningless. The impact of international law is indirect. The United Kingdom courts rightly seek to ensure that the United Kingdom is in compliance with its international legal obligations. If a domestic statute can be read in two ways, one reading of which will place the UK in breach of international law, and the other not, the latter will be adopted. Similarly, if the common law can be developed in such a way as to ensure that the United Kingdom is in compliance with its international legal obligations then the courts will do so. Prior to the Human Rights Act, the courts sought to expand the domestic law of torts to give people redress so as to ensure that the United Kingdom provided litigants with an adequate remedy as required by Article 13 of the European Convention.
It is flat wrong however to assert that international law is directly effective in the United Kingdom domestic legal order. In this respect it is quite different from European Union law. If it were there would be no need for the Human Rights Act as the rights under the Convention would have been incorporated into UK law as soon as agreed to by the United Kingdom without more ado.
Error 2: International law binds the Crown, the Crown acts through ministers, therefore international law binds ministers
The mistake here is one of agency law. The United Kingdom state has no physical existence. It is a legal construct with no more real presence in the world absent the law than Royal Dutch Shell plc. It can only act through real world human agents acting on its behalf. Precisely the same is true of companies that can only act through their directors.
The error Professor Dapo Akande and Dr Eirik Bjorge make is to suppose that because the acts of an agent (here a minister) are attributed to her principal, that this entails that the duties of the principal attach to the agent. The latter proposition does not follow from the former.
If a principal, such as a company or a state, is subject to a legal duty, does that entail that the agent who acts for it is bound by the same duty? It does not. The duty is on the principal, not the agent. Just as companies are bound by the contracts they enter into, and not their directors, so the United Kingdom is bound by the agreements it enters into, and its ministers are not.
The parties bound by agreements are the parties to those agreements. The United Kingdom is bound by the agreements it enters into, but third parties, however eminent they may be, are not.
Error 3: Where domestic law is inconsistent with international law the minister must follow the former, therefore domestic law has hierarchical superiority.
Commentators agree that in a case of direct conflict, a minister must follow UK domestic law and not international law. For those who think international law is somehow automatically incorporated tout court into UK domestic law this can only be explained by some kind of trumping one by the other.
This is wrong. International law binds states, not individuals. Individuals are bound by the law within their own domestic legal order. There is no hierarchy, anymore than there is a hierarchy between the laws of Germany and France. The legal persons bound by these rules differs.