The challenge to democratic nation states, from within...

Exposing internationalism's moral fallacies

Following my questioning of the the Attorney General’s assumptions in his recent RUSI speech, I was asked by Engelsberg Ideas to develop my argument for their online magazine. Do consider subscribing if you can.

The issue is a serious one, for we are currently suffering an attack of lawfare from within our own ranks of lawmakers and politicians against the very institutions that give international cooperation its legitimacy, namely the democratic nation state itself. Don’t be fooled into thinking that the democratic nation state is no different to other forms of nation state that are not democratic: they are fundamentally different of course, although people such as Lord Hermer seem to suggest that all should be tarred with the same brush, and to protect global human rights the agency of each nation state needs to be hobbled. But democratic nation states such as ours provide the fundamental political and moral underpinnings of the international global political order, not the other way around. International law is founded upon national agency, and cannot be sustained without the good will of democratic nation states. When we forget this we give internationalism a legal and political legitimacy -not to mention a moral authority - it does not deserve.

My article follows below.

---

Most sensible people across the democratic world would be happy to assert that where domestic laws – of any kind – are shown to be disreputable, or to fail to serve the interests of the law or the purposes for which they were established, they should be removed from the statute book. Indeed, thousands of laws have found themselves expunged from the United Kingdom’s statute book over time because they’ve been deemed to be old and irrelevant. This has been going on since the Statute of Marlborough in 1267, with Brexit recently giving the process something of a helping hand. This is right and proper, for not since states were directly ruled by religious institutions in places like Rome have laws in Britain been seen as anything other than pragmatic and expedient rather than morally inviolable.

So why the fervent, even evangelical, levels of support for the European Convention on Human Rights (ECHR)? Many of the self-same sensible folk in the UK who, on the one hand, believe that domestic laws can be time expired, on the other are mounting dramatic defences of the ECHR as an article of moral permanence, seemingly regarding continued adherence to the Convention to be an article of faith.

On 22 May, a group of nine countries in the EU wrote an open letter demanding a reconsideration of the ECHR, especially the implication that every refugee it protects deserves that protection. What about imported criminals? Every law, these nine assert, needs to be reviewed regularly to ensure that it remains relevant. The letter asks the European Union ‘to start a discussion about how the international conventions match the challenges that we face today. What was once right might not be the answer of tomorrow’.

The response has been immediate and visceral. Alain Berset, the Chairman of the Council of Europe, published a blog attacking any ‘politicisation’ of the ECHR. The European Court of Human Rights was ‘the legal arm of the Council of Europe — created by our member states, established by sovereign choice, and bound by a Convention that all 46 members have freely signed and ratified,’ he asserted. Correct so far. But challenging its rulings would be to politicise the Court, which is not ‘healthy’, according to Berset. ‘In a society governed by the rule of law’ he continued…

no judiciary should face political pressure. Institutions that protect fundamental rights cannot bend to political cycles. If they do, we risk eroding the very stability they were built to ensure. The Court must not be weaponised — neither against governments, nor by them.

Extraordinary. This appears to reassert the prerogatives of canon law from an earlier, less intelligent age. What is the point of the EU if not to represent the views of its members, sovereignly determined? Democratic sovereignty resides in parliaments formed from the people, which then makes laws to protect the people. Laws of and by themselves cannot be immutable, or virtuous. Laws must be the product of human choice, political agency, and what Berset correctly identifies as ‘sovereign choice’. They don’t have moral virtue, as, of themselves, laws have no agency. They are laws, not religious rules that are sacrosanct as a result, like the Ten Commandments, of being given to us by God himself. Human laws are made by fallible people within the particular circumstances of history. They can quite easily, therefore, expire in the fulness of time, when the need for them disappears or when they come into conflict with other, more pressing issues requiring a change of approach.

The truth is that the source of the ECHR’s legal status comes solely from the determination or political agency of the various states who sign up to its obligations. Those same state signatories could, if they so wished, withdraw their assent at any time and be no less morally bad as a result.

Why is it so hard to consider amending the ECHR? Because in many respects it does represent moral good. It was created in the aftermath of the Second World War to protect human rights, promote democracy, and ensure the rule of law across Europe. In the aftermath of the Holocaust, it was seen by its creators as a legal safeguard against the abuses by states of their own people. But 2025 is not 1950. Nor did the drafters of the ECHR have an appreciation of the way in which its application today could, in effect, undermine the national authority of the originating states.

Undermining national authority is considered by some in Europe’s political class as a moral good. Indeed, a struggle between national interest and international collectivisation lies behind the unwillingness of many to consider any amendments to the ECHR. This sort of internationalism seems to be prompted by an underlying moral purpose, which says something like ‘international law is a perfect good. It should therefore trump national interest, which by extension must be regarded as an imperfect good’. This, of course, is a political position, to which a moral authority now also appears to be ascribed.

This seems to be the only way to understand Alain Berset’s position. It is an attempt to constrain national governments from governing. Perhaps this is what is driving the evangelists of the internationalist position: international legal imperatives good; national ones bad. Across Europe, high-minded internationalists show a disdain for those who challenge the premises of their political philosophy in the name of national sovereignty. Is Berset defending the ECHR and the internationalist position out of pure moral principle or out of political expediency? I think the evidence is clear.

I am an historian, not a lawyer, but even I can see that some laws are intrinsically bad or have lived beyond their expiration date. What is more, what internationalists seem to forget, is that the source of authority for international law is in fact national agency, abrogated for a common or collective good. International law is the fusion of multiple sources of national interest to create a set of obligations to which the many are then constrained. Consequently, international law requires national agency, to protect and sustain the purposes for which the law is constructed. It is, therefore, a partnership between multiple national interests which coalesce together in treaties and agreements, such as the ECHR, that serve multiple national interests. The idea that international law is a medicine to alleviate the crimes of national interest is therefore illogical.

There are many examples of international law not being good, nor working effectively. In 1936, Hitler brazenly abrogated international law by remilitarising the Rhineland. International law did not protect itself or stand up for its prerogatives and injunctions. It couldn’t, of course. This required national agency, which, as history sadly attests, wasn’t forthcoming at the time. As Lord Dannatt, Britain’s former Chief of the General Staff, and I demonstrate in Victory to Defeat, neither Britain nor France had the political will to intervene to uphold international law, even if they had the military means to do so (France did; Britain didn’t). If they had, we may have avoided the Second World War.

More recently, the United Kingdom and others committed to protect Ukraine in exchange for Kyiv relinquishing its atomic weapons. A fat lot of good that did Ukraine when it was invaded in February 2022. What is more, the country that invaded Ukraine was one of the five permanent members of the United Nations, the organisation which I can only presume internationalists regard as the world’s ultimate law-making body. What good is international law if the national interest of one of its members abrogates it so egregiously?

International law is, therefore, an artificial construct, a product of the good will of national realism. It can only work if the nations that create it believe it to be worthwhile. It isn’t a good in itself, and national interest isn’t as a consequence a lesser good. Internationalists have got their hierarchy of power inverted. To imbue international law with an inherent moral value simply because of what it is not (i.e. national agency) is an argument of absurdity. It is a logical fallacy, and should be rejected by all those who advocate for true democracy, the true source and greatest expression of which is the nation state.

---