Through thick and thin: What is the rule of law?

15 Jun

Do governments need to comply with international law? This rather startling question has been thrown up over the last few months as the UK’s legal – and political – minds wrestle with the true scope of the principle known as the ‘rule of law’.

To take one recent example, on 22 May the UK signed an agreement to give up its sovereignty over the Chagos Islands in the Indian Ocean (for nothing), and pay Mauritius £3.4bn to lease back its military base. This followed an advisory opinion issued by the International Court of Justice, which opined that the UK should return the islands to Mauritius.

Earlier this year the Attorney General, Lord Hermer KC, championed the Chagos deal as a sign of the UK’s commitment to international law, which he said was a key component of the rule of law. But is it?

The Shadow Attorney General, Lord Wolfson of Tredegar KC, thinks otherwise. In a speech he gave in March, he argued that the government’s “unthinking obedience” to an advisory opinion of the ICJ was wrong. A thick concept of the rule of law which forces the UK to fall behind the decisions of international bodies – even where the UK has its own, arguable legal position – risks undermining the national interest and democratic principles of parliamentary sovereignty.

Lord Wolfson argues instead for a thin approach to the rule of law: The law must bind everyone in the state, and the state. Judges must be free and independent, both from the state and from each other. And the law must be clear, general and possible to follow. You will notice that international law doesn’t come into the picture.

We are now living in a world where the international rules-based order seems to be crumbling away – with Trump’s tariff war and the decline of US leadership, the rise of a Chinese zone of influence and Russia’s war of territorial expansion all posing a threat to traditional norms of diplomacy and international law. Does the fact that no one else is playing the game mean that the UK should give up on keeping international law, or should we try to show leadership in a leaderless world? Even if we should, should the concept of the ‘rule of law’ be stretched to include this issue too?

A similar controversy was waged in the wake of the previous government’s Rwanda policy, which prompted the European Court of Human Rights to issue ‘interim measures’ preventing deportations. Some scholars argued that the UK should ignore these interim measures – there is no provision for them in the Convention, which protects only final judgments and they emerged only from the court’s jurisprudence. Should the UK feel bound to uphold them in every case? That may depend on whether you have a ‘thick’ or a ‘thin’ approach to the rule of law.

As lawyers know, the ‘rule of law’ is a bedrock legal principle that underpins all aspects of legal thinking. It is also one of the core principles which English solicitors must uphold to comply with their regulatory obligations.

What do you think – should the rule of law comprise international legal obligations as well as domestic ones?

Read the two rival speeches from the AG and shadow AG here and let me know your thoughts! https://www.biicl.org/documents/12532_bingham_lecture_2024.pdf https://policyexchange.org.uk/events/the-rule-of-law-at-home-abroad-and-in-westminster/

Due to our cross-border capabilities, at Asserson, we regularly advise on disputes where questions of international law and jurisdiction intersect with commercial interests.