19
Examination of witnesses
Professor Michael Schmitt and Professor Marc Weller.
Q235 The Chair: Welcome to the 22nd session of this committee looking at the relationship between the United States and the United Kingdom. I declare that I am a senior counsellor with the Cohen Group, which is based in Washington DC.
The United States has given a justification for what happened in Venezuela and the forcible removal of President Maduro. Can you comment on the legal justification that was given by the United States Administration for doing that and say whether you agree that it was within international law?
Professor Michael Schmitt: I am a professor of law at the University of Reading in the United Kingdom. I am also a professor emeritus at the US Naval War College, where I spend most of my time.
With Venezuela you must look at the various phases of the operation. It is not a “one size fits all” analysis. You begin by looking at the deployment of US maritime forces off the coast of Venezuela. Normally, that would be consistent with the right of high seas freedom. However, in this case, the deployment of that force was accompanied by threats from US officials to use force. Therefore, the very deployment of those forces, combined with the threats, was a violation of Article 2 of the UN Charter,[1] the prohibition on the threat of the use of force.
Once they got there, they began to conduct the drug boat strikes. The justification there was self-defence. The premise is that “drugs coming into my country end up killing people, and therefore those drug operations by the cartels are an armed attack on the United States”. That argument also does not hold water because drugs coming into a country are not the equivalent of an armed attack. When we think of an armed attack, we typically think of kinetic operations, the use of armed force.
If there is no justification under the law of self-defence, what was the violation of international law? You do not violate the UN Charter when using force against non-state actors such as drug cartels. Therefore, it was not a violation of the UN Charter’s prohibition on the use of force. It was a violation of international human rights law—in particular, the right to life. Moreover, because individuals were killed without legal justification, it was murder under the law of any state that enjoys jurisdiction.
Then we have the actual invasion. Here, the US justification has shifted from self-defence in the case of the drug boats to law enforcement, because Maduro and his wife had both been indicted in the Southern District of New York for a number of offences including narcoterrorism. However, that does not work because it is very clear that one state may not engage in law enforcement on the territory of another state without that state’s authorisation. Moreover, even if a state could do that, how the law was enforced was disproportionate here. We must remember that there were scores of deaths in order to capture the two of them.
Moreover, it is a violation of sovereignty. Sovereignty says that certain states have a right to exercise certain functions on their territory, law enforcement being one of them, and that if another state does that it is a violation of sovereignty. And it was a violation of the international law prohibition on intervention in the internal affairs of another state. Why? Because Maduro, the President of the country, was removed. It was a violation of the prohibition of the use of force because the classic justifications for the use of force—self-defence and UN Security Council authorisation—were missing.
The fourth phase consists of seizures of vessels at sea. Here the American argument is, “That is our oil”, because long ago Venezuela wrongfully nationalised US companies’ assets in that nation. That is correct. Venezuela did unlawfully do that. It has been the subject of arbitration and so forth. However, you cannot get from there to the seizure of the vessels, because the seizures of vessels on the high seas is the exclusive prerogative of the flag state.
The key exception during peacetime that would apply here is if the ship that was boarded and seized was a stateless vessel. There was one such case. The ship was called the “Skipper”. It was flying a Guyanan flag, but Guyana said that it was not registered in Guyana—which would give the US Coast Guard the authority to board that ship as a stateless vessel and enforce US law aboard it. That seizure was probably lawful but, beyond that, seizures were not lawful.
Finally, once we were involved in an international armed conflict with Venezuela as a result of our operations, the law of seizure changes a little. It is lawful to seize enemy merchant vessels, but it is not lawful to seize neutral vessels, which we did. We seized a Russian vessel. It is not lawful to seize that vessel unless it is carrying contraband or is engaged in certain other activities, which that vessel was not.
On Venezuela, it is important that you deconstruct the various US operations, look at the changing US justifications and then address each of them separately.
The Chair: Thank you very much. That is a pretty comprehensive catalogue of breaches of international law. Professor Weller, can I ask you the same question? What was the justification and do you believe that it was in contradiction of international law?
Professor Marc Weller: I am a professor of international law at the University of Cambridge and the head of programmes on international law at Chatham House.
I subscribe to 98% of Professor Schmitt’s views, with not-very-relevant slight deviations. I apologise for having been gripped by the horrible flu. I would have loved to have been with you in person today, but hopefully I will last throughout the session.
In relation to the major issue—the invasion intervention in Venezuela—as we heard, the US in part put forward three arguments. The main argument is that it is not really a use of force in international law but simply an exercise of US law enforcement. They say, “Look, we have lawfully under US law indicted them. We have criminal charges and all we did was to exercise our criminal jurisdiction”—and they did take some drug enforcement officials with them.
However, as Professor Schmitt so wisely pointed out, that in itself is already an intervention on the sovereignty of another state to exercise public powers on its territory without the consent of that state. It is quite ridiculous. You will remember President Trump placing so much emphasis on how there were 150 aircraft involved in the operation, launching complex military undertakings and heroically coming to a very swift victory on this issue. It is impossible to argue that this was not a use of force. It was a major military operation, during which they acquired the serving President of another foreign state.
Therefore, this argument does not hold. We have already heard that self-defence does not apply, even if the US is affected by drug trafficking in its own domestic jurisdiction. The only trigger for self-defence is what is called an armed attack. That is a highly technical term that international lawyers employ when a significant level of kinetic military-type aggression is launched against a state or certain other protected items such as its ships or aircraft. That was not the case here.
Finally, the US might have argued pro-democratic intervention. There was the argument that, two years before, someone else had won the election that the Maduro Government had held. In relation to Panama, for instance, the US swore in Mr Endara as soon as its forces had started to take over Panama. He is the one who probably won the elections over Mr Noriega in 1989. However, there is no sign here of making that justification, which is controversial in international law. The US just abducted the President and left everything else in place. There has not been a formal justification of pro-democratic action, that “we are vindicating the will of the people”. The US have opted to keep the existing structure of government because that can deliver what the US is hoping to achieve, including the acquisition of control over natural resources.
Q236 Baroness Blackstone: Professor Schmitt, I think that you have partially answered this question, but could you say a little bit more about the effect of US operations in the medium term on the rules-based international order as well as on the medium term for the United Nations?
Professor Michael Schmitt: It is pretty clear that the US operations were unlawful on a lot of bases. There is no justification whatsoever for what my country was doing in Venezuela, none. This is problematic in terms of the rules-based international order because it comes on the heels of other activities by other states that are likewise clearly violations of international law. I am thinking of the operations by Russia that commenced in 2014 against Ukraine with the belligerent occupation of Ukrainian territory, the aggressiveness, the claimed annexation of Ukrainian territory.
Now that the Americans have acted, we do not have a bad actor on the scene but rather two major powers, that both sit on the Security Council, acting with relative impunity in clear violation of international law. It does not appear that other states are taking advantage of the remedies that international law provides in the face of such violations—for example, acting in collective self-defence under Article 51 of the UN Charter in support of Ukraine.
With respect to Venezuela, it strikes me that the response from a lot of states in the international community has been extraordinarily weak. The condemnation has been muted; people are uncomfortable but, with a few exceptions, there has not been strong condemnation of what is unquestionably unlawful conduct. There seems to be a sense that, “Well, we rely upon the Americans, we need the Americans and they are doing what they are doing in their own backyard”. And even with Ukraine—I applaud the effort to support the Ukrainians but, really, we are letting Ukrainian soldiers die for European and North American security.
This is a really bad time. When the President of the United States was pressed on international law in a very well-known interview with the New York Times, he responded: “I don’t need international law”. When really pressed his answer was that international law applies but he is the one who decides what the international law is. Later in the interview, he was asked whether there are constraints on his power. His answer was, “My own morality. My own mind. It’s the only thing that can stop me”. As an American, that is a terrifying thought.
Then we have the Secretary of Defense. His views on law are well known. I spent 20 years in uniform as an intelligence officer and as a judge advocate. He calls us jagoffs, “jag” being “judge advocate general”. He tells his troops that we are jagoffs and then puts that in his book. The question is whether Venezuela signals damage to the international legal order, the rules-based order, or whether, piled on top of the Russian action we are seeing, the destruction of that order.
I read a very good piece yesterday by three German academic friends of mine, Claus Kress from Cologne in particular, saying that we have moved from unlawfulness to lawlessness. That pretty much wraps it up as a result of Venezuela on top of Ukraine and a number of other actions around the world.
Baroness Blackstone: Thank you very much. Professor Weller?
Professor Marc Weller: I also intended to draw attention to the unusual views of President Trump as exhibited to the New York Times. He did accept that international law exists, but it is less important than US national interests, he argues, which is very much the 19th century, before international law was accepted as binding under all circumstances—you are free to agree to its rules or not but once you have agreed you are bound. He then adds that in any event it is his own moral compass that decides. We all have our own moral compass. If it were left to that, we would not have a legal order.
I will focus on one other aspect, how normally the international system preserves itself, even if a key rule has been violated—and this is the key rule. The organised international community, if the Security Council does not function in the UN General Assembly, for example, will identify the violator and the violation of the rule. That is the mechanism by which the system maintains rules, even if they have on occasion been violated. This has not happened here, because there has been too much deference to the US, not wishing to upset President Trump early in his new mandate. That is quite dangerous. Claus Kress was mentioned and, as we heard, the US is stepping outside of the legal order. The only corrective mechanism that we would normally expect to take hold is that the rest of the international community identifies this and condemns it—and the violator would normally justify the violation in terms of the rules.
I accept that this could be considered a violation of the prohibition of the use of force, but in this case it is justified as being self-defence or pro-democratic action. Yet we did not have any of that in this instance. That is the unhappy aspect of this. Normally a state accepts the underlying rule and says, “However, I am covered by an exception”. Here are a Government who say, “The rule does not really apply to us, at least not under all circumstances”.
Other states have not been vigorous in calling this out. The United Kingdom has found that the situation is highly complex. I think 98.9% of international lawyers would have judged pretty swiftly that the situation is quite clear. There is no legal justification that one could put forward in this instance. The French were a little bit more specific at the UN Security Council, and it was left to poor little Denmark to stand up for the international legal order and clearly call out this violation. They may have had their own concern in the back of their minds while they were doing so.
It is up to the international community to maintain the system by defending it. Later in our discussion, we might come to some steps one might take.
Baroness Blackstone: Would you include the UK in your criticisms of other members of the international community for too much deference and a lack of calling-out of the US in relation to these actions from an international law perspective? Should the UK, which has a so-called ‘special relationship’ that we are looking at, have been at the forefront of criticism and taken up all the points that you have made about the illegality in international law of the action in Venezuela?
Professor Michael Schmitt: The answer is yes. It is because of the special relationship that the UK needs to step up. The UK’s voice will be more important than that of any other country. I understand that you have a special relationship. I understand the short-term economic and other costs that would result if you press the Americans. However, if you believe in the international legal order, you must condemn violations of this magnitude. I do not think that the United Kingdom has done that.
Professor Marc Weller: I concur. The United Kingdom was hesitant at the UN Security Council. It joined many other states that were drawing attention to the unappetising nature of the Maduro Government. Then, in a separate paragraph, it added that of course international law is important and should be maintained but did not identify this conduct as the two of us have done today and most international lawyers would do.
It is interesting that there were further reflections afterwards when we came to Greenland. That was a step too far and you saw HMG being quite decisive in rejecting this as entirely unlawful in quite strong terms. Maybe there is an evolution of political thinking regarding at what stage one has to defend the legal system, as this came closer to the European continent.
The Chair: “The evolution of political thinking”. I will treasure that phrase for a moment.
Q237 Baroness Crawley: President Trump has said that the US will be in control of Venezuela for an indefinite period. What, if any, is the international legal basis on which the US can claim to run Venezuela?
Professor Michael Schmitt: That is an awfully easy question to answer. There is no legal basis—none. There is no legal basis for the United States running Venezuela. Venezuela remains a sovereign state. It has control over its internal affairs. To run Venezuela, the United States would have to engage in belligerent occupation.
We are involved in an international armed conflict—or certainly were until very recently. During belligerent occupation, sometimes you occupy the territory of the enemy. When you occupy the territory of the enemy, you have an obligation to ensure that the country continues to run. The United States has elected not to do that. There is therefore no basis for claims that we can run Venezuela.
We can influence choices. Influence is not unlawful in international law. We can exert our economic influence, our diplomatic throw weight, to achieve the results that we want in Venezuela. However, when that influence becomes coercion—and here clearly the US actions are coercive because we have just bombed that country—then they are no longer influence but wrongful intervention. At least for a while, when we try to bully Venezuela into taking this or that decision, that is an intervention into the internal affairs of another sovereign state.
Professor Marc Weller: I can only echo what we just heard. There is no legal justification for running a foreign state after you have removed the head of its Government and ensured that what remains is compliant with the wishes of the United States. The argument that there had been previous expropriations which may have been unlawful 10, 20 or more years ago is contested. A state does have the right to mount expropriations if needed for its economy, provided that it is not discriminatory and it pays compensation.
However, even if it was an internationally unlawful expropriation, that gives no state the right to take over control of the country with a view to extracting its resources. In this case, it is more than acquiring supposed compensation. It is extracting resources in the long term and placing US businesses in charge of that extraction. There is absolutely no legal justification for this. It is good that you posed the question because very few people have asked this obvious point. This is an ongoing, significant violation of international law.
Baroness Crawley: You both talk about coercion. If extraction of mineral wealth takes place down the line, is that a criminal act by the United States because they are coercively influencing the Venezuelan Government to allow them to do that?
Professor Michael Schmitt: That certainly would be the case. Given that we have used military force and that we continue to wield significant military force, we are impliedly continuing our unlawful threat of the use of force. For a while, military force will be coercive, and the Venezuelans will take decisions because of that military force, because they are coerced.
We need to be a little careful, though. It might be that there are arrangements that are good for Venezuela, that the decisions are not coerced but rather that Venezuela makes an independent decision that it wants to, for example, work with American oil companies. That would be perfectly lawful. They are a sovereign nation and can choose to do that.
It only becomes unlawful when you are taking choice away from the country—making them do something that they do not want to do or keeping them from doing something that they want to do. You must be careful to distinguish between a decision and a coerced decision which would trigger the violation of international law.
Professor Marc Weller: I am not sure that it would be criminal because in international law that is a separate and slightly different category, but it would be an internationally unlawful act by way of intervention. Intervention means one state imposing its own decision upon the sovereign decision-making power of another state in relation to that state’s own sovereign area of jurisdiction. That would probably be the case here.
If, later on, Venezuela wants to undo some of the decisions that it has now taken, we would come to the difficult point that Professor Schmitt has raised—which of these decisions are a direct result of the application of US power and which are decisions that they might have taken themselves? I am not sure whether the criterion that it was good for Venezuela, is a sufficiently hard criterion. The question is, “Did they have other choices or were they bound by the imposition of the will of a sovereign state?”
Q238 Lord Lamont of Lerwick: I declare an interest as honorary president of a non-functioning body, the British Iranian Chamber of Commerce—I thought that I should declare it just in case. There has been a lot of talk about the revival of the Monroe Doctrine, from Rubio and from the President. Is the concept of the Monroe Doctrine consistent with international law today or at odds with it?
Professor Marc Weller: The original Monroe Doctrine sought to prevent foreign intervention or acquisition of territory by outside states in Latin America. Then we had the Roosevelt corollary that added that the US has a right to intervene in the domestic affairs of irresponsible Latin American states. The argument was that if they contract foreign debts that they cannot pay or do damage or injury to European states, that gives them a legal ground of intervention, and the US has a right to intervene and prevent this kind of outcome.
This has been rejected since 1945, if not before, as being entirely unlawful. Latin America has a very strong history, in view of this past practice, of emphasising the doctrine of non-intervention. If you want to get into an excited and enthusiastic discussion about non-intervention with anyone in the world, ask a Latin American and they will give you a many-hour-long dissertation on the principle of non-intervention and its value in the world.
The US has no legal entitlement to go against this internationally entrenched doctrine—at least within the international system as we know it. There may now be an argument from President Trump that for reasons of security he has to run “his” hemisphere and therefore has superior rights to all the individual states within it. That again is a return to 19th-century politics. We thought that we had overcome that through the international legal rules that preserve and protect the security of all states, whether within or outside a particular hemisphere, through the application of the prohibition of the use of force, the doctrine of non-intervention and other rules that are meant to apply to each one equally, independent of whether you lie close to a great power or not.
Professor Michael Schmitt: I generally agree. As an American, I want the United States to leverage its power in the region and where else it can in the world. There is nothing wrong with that. It is what your country does and what my country does. That is diplomacy. That is why you have an FCDO and why we have a State Department. I do not have a problem with the Americans pivoting to the western hemisphere. It is the way they would do that. There are limits to the exercise of your power, as Professor Weller has said. There is a legal obligation in international law to respect the sovereign equality of states, as set forth in the UN Charter. You must respect the sovereignty of other states.
I do not think that it is horribly problematic that the Americans are saying, “We want to move our attention back towards our hemisphere”. It is how this Administration is doing it. It is using force unlawfully and without any acknowledgement of the sovereign rights of the other countries in the area.
Q239 Lord Alderdice: When the Monroe Doctrine was promulgated, the other important power and relationship in North America was with this country because of British North America. There was a general acceptance that the Monroe Doctrine did not apply—that western hemispheric control or influence of the United States did not apply to British North America. For a long time, the view was that the protection of the United States was welcomed by British North America and then at the end of the 19th century by Canada. However, the 21st century interpretation of the Monroe Doctrine that seems to be developing includes Canada as part of the area of influence and interest of the United States. Do you have anything to say about that interpretation of the Monroe Doctrine in the present time?
Professor Marc Weller: I would leave that for Mark Carney, who at Davos had such a huge impact challenging the view that any state is suppressed in its own sovereign rights because of the security interests of a larger one—be that Ukraine, in relation to the Russian Federation, be that neighbours or entities close to China, or be that states in the larger Americas, north and south, in relation to the US. He found that this constituted a rupture of the international legal order of a significant dimension. That resonated quite widely among the participants. The idea that there now is a special right of the United States extending to the Americas, north and south, and to Greenland because Greenland is necessary for the defence of the US—a right to just take what it deems necessary for its own security without a negotiated outcome or without legal entitlement—is a dangerous new addition which has rightly been very broadly rejected.
Lord Alderdice: Thank you very much for mentioning that Davos speech by Mark Carney. It is an extremely consequential statement by a very relevant head of a major country. Professor Schmitt, do you have any comments you want to make about it?
Professor Michael Schmitt: The whole thing is incomprehensible to me. The United Kingdom is our closest ally but, listen, Canada is our closest friend. Why we have turned our sights on Canada is incomprehensible to me. With regard to Professor Weller’s comment on no special rights, no country has special rights in international law. The rights of the United Kingdom in my hemisphere are the same as the rights of the United States or Bolivia in the hemisphere. On the whole Canadian thing, from both an American citizen’s point of view and an international lawyer's point of view, as someone who has spent a lifetime doing international security, it is very simple: I just do not get it.
Lord Alderdice: Thank you very much, that is pretty clear.
Q240 Lord De Mauley: Professor Weller, to what extent does President Trump’s rejection of elements of the international legal order reflect a continuation of an existing trajectory—an evolution of the US approach to international law over recent law years, if you like—and to what extent does it signal a more lasting and/or structural shift in US policy?
Professor Marc Weller: If I were to ask an august body such as yours what you think the greatest civilisational achievement of the 20th century is, you might say the art of Kandinsky or penicillin, or you might say: it is the prohibition of the use of force. The realisation after the horrors for the combatants in World War I, and for many others in World War II, of what war actually means led to the prohibition of the use of force, as the principle that you cannot ever enforce national interests, claims or security demands through the use of force—the only exceptions being self-defence and a UN mandate, i.e. a decision by an international body that you can use force in other circumstances, and perhaps a kind of emergency right of humanitarian intervention.
We have seen over the past decades an arrogation of powers that previously the Security Council had to authorise the use of force outside the traditional circumstances. We saw last summer the use of force to prevent Iraq acquiring nuclear weapons, for instance, which with a UN mandate would have been no problem but, of course, no mandate was forthcoming. Missions of that kind have already led to certain confusions about what international law does and does not allow, but there are many other instances where force has been used as a means of national politics, just because force is becoming more available.
There is less risk, with no casualties on your own side, through the technology that is available. You can mount military operations that achieve a national aim overnight, as in Venezuela or Iran last year, instead of pursuing diplomacy over years, perhaps unsuccessfully, so the idea that the use of force has returned as a means of national policy is a very dangerous curse that we are at the moment confronting. There are many other examples that I cannot now go through where the prohibition of the use of force over the past 10 or 20 years has been undermined a little bit: self-defence and counterterrorism are other examples.
What we now have seems to be a US realisation that force works. Force can be used and the negative consequences of it can be constrained. We may find—the US may find—that in the long term it does not quite work as easily as is envisaged, but of course the argument against this attitude is much more principled. If other states, too, start to believe that force returns as a means of national politics, then we are really returning to a pre-19th-century world where there is no protection for states, large or small, from armed operations through which states try to vindicate their interests. That is the slightly concerning aspect of all this, but I do not think it is a blip.
What we are now seeing seems to be in part technology and in part the US rediscovering, after Vietnam, Afghanistan and various humiliations, that force works. That will lead others also to take the view that you can implement policy aims forcibly, and that is going to be very dangerous. It is redoubled by a sense in southern states that there has been a double standard administered by the West, with a lack of credibility of international law. I think we would all want to engage with these things through argument, but what has now happened is really quite dangerous and unprecedented.
Lord De Mauley: Professor Schmitt, I was notified in advance that you would prefer not to comment directly on US policy but you have, fairly extensively, so would you like to now?
Professor Michael Schmitt: I certainly agree with Professor Weller. The use of force does not work and I am stunned at how short-term our memory is. I am a war college graduate; I was on the faculty of a war college for a long time and was chairman of the department there. Force does not work very well. There were the lessons of Iraq. We conquered Iraq literally overnight; we moved into Afghanistan literally overnight. In Libya, NATO bombed and removed Gaddafi overnight. All of those cases turned out to be long-term operations with a lot of people killed. At the end of the day, all those countries were left in a situation that was arguably worse than it was when we employed force against them.
Perhaps the best example is Russia moving into Ukraine. You have to remember that when the Russians moved in everyone, including the guy you are talking to, assumed that Russian forces would seize Kyiv within three or four days. It was incomprehensible that it would take longer. Kyiv is still here and the Russians occupy parts of eastern Ukraine and Crimea, but their troops are being slaughtered by the Ukrainians.
I think Professor Weller is right: force does not work. The problem is that we have some folks in charge now who seem to believe it does. They are just not paying attention to recent history so, like Professor Weller, I am pretty nervous about this move.
Q241 Lord De Mauley: Can I ask you a follow-up question? What legal tools are available to a state such as the US with a pariah state on its border? Is there anything more than sanctions?
Professor Michael Schmitt: The answer is not so much more than that, to be quite frank. You can certainly gather the international community. You can go to the Security Council and if you can secure agreement there over the veto of one of its permanent members—as you know, that is very difficult to do—in the event that that state violates international law on an obligation it owes you, there is a tool labelled countermeasures in international law. If someone is engaged in unlawful conduct against you and is in breach of an obligation that it owes you, you may in certain limited circumstances breach international law—an international law obligation that you owe that state—to drive that state back into compliance with international law.
There is a principle of necessity saying that in the event that a situation is placing an essential interest of your state at grave and imminent peril, then you may sometimes violate international law to respond to it. But, at the end of the day, your question is a good one. There is not a lot you can do about it. I do not think that is a good argument, though, for saying, “And therefore we may employ force to remedy the situation”.
Lord De Mauley: Professor Weller, do you have anything to add?
Professor Marc Weller: I agree very much with that logic. Normally, you would try to build a broad coalition of others and help them understand why you think the state south of your borders is a significant danger to international peace and stability, and ensure that what you are doing is not seen as a new, imperialist act against a small defenceless country but, instead, is supported by others as international rule maintenance, as it were, instead of an abuse of the rule of law.
In the end, whatever the interests concerned, even the doctrine of necessity that Professor Schmitt mentioned would never justify the application of military force to circumstances such as this. If there is no remedy, then all you can do is to isolate yourself from the damage they do to you, ensure that no drugs come to your borders and take other steps to deal with these practices, short of the use of force.
Q242 Baroness Prashar: Professor Weller, to what extent is the survival of international law and the international rules-based system dependent on the US’s leadership and compliance?
Professor Marc Weller: We used to think that it is dependent on US leadership and compliance, and the US has of course been involved as a key state in forging how we understand the provision of the use of force. It was the key drafter of the UN Charter; you may remember the Stimson Doctrine, which opposes the acquisition of territory by force, and other innovations driven by the US.
One would have thought that if the US wants to maintain its position of leadership in relation to the international rule of law it could easily exercise that role, given all the other challenges we see from other states, but that requires that one complies with some of the essential principles of the rule of law. It means that everybody is, in principle, equal before the law and you have to apply the law equally to others, even if you have different political perspectives. Recently, for instance, in the way that the US has treated the Ukrainian negotiations, with the pressure to give up territory—and the inability, perhaps, to oppose some of Israel’s practices in relation to Gaza—rather than being a leader on the rule of law, the US seems to have placed itself in a position that is seen as further evidence of, if not the collapse, then challenges to the rule of law and its equal application to all.
This has given rise, though, to an extraordinary development. I do not know whether you noticed it but, over the last two weeks or so, there were two full sessions in the UN Security Council, called for by developing states. One was, believe it or not, on the international rule of law and steps that we can take to preserve it. This was in the Security Council. Another session was called especially to address the issue of the sanctity of treaties and international obligations—how to defend international law at a time when one major state, or two or three, claims that they are not so much bound by the rule of law. The ones that pushed for this are the very states which, until a year or two or three ago, would have said that international law is an evil, imperialist, western liberal imposition which they have to comply with because they have to.
We now have the realisation all around the world that international law is an essential tool for maintaining stability and even, yes, common values which are not western-imposed but which we all share—because none of us likes to be tortured or violated in our most basic human fundamental identity, as it were. We have interests in facilitating stable economic and other relations and, suddenly, we have a global coalition emerging that speaks out in favour of the rule of law. The Gambia is pursuing Myanmar, a fellow southern state, over the persecution of the Rohingya before the International Court of Justice, which is a primary classical tool of supposedly western international law. South Africa is doing the same in relation to Gaza. They have also formed The Hague alliance in defence of decisions of the international court concerning Palestine, and various steps like that.
It is interesting to see that the lead role of the US is being replaced by others stepping up to the plate and saying, “Actually, international law is essential. We want to defend it and we are now finally willing to say so publicly”—and to get over some of the rhetoric of the 1970s that inhibited universal consensus on these issues—so there is a hidden gem coming out of all of this.
Baroness Prashar: That is very helpful. Professor Schmitt, do you wish to add anything.
Professor Michael Schmitt: I guess I am not so optimistic. Yes, South Africa, the Gambia and all, but listen: the countries that matter are the United Kingdom and in Europe, and the track record is not very strong on your part or that of other European countries. You have flashes of, “We don’t like that. No, you cannot invade NATO territory. We’re going to send a few troops to Greenland to serve as a tripwire”. But the bottom line is that you are all nervous about severing ties with the United States in order to bolster international law. In my mind, you can expect nothing from the United States for the next three years. If you are expecting us to change, we are not going to. It is going to be the same for the next three years, so my question to you is: are the United Kingdom or the Europeans willing to step in and fill that void in a way that is more than show and has substance? We will have to see if you are up to it.
Baroness Prashar: Professor Weller, in your earlier answer you said that some steps can be taken to sustain international law. Can you elaborate on that, please?
Professor Marc Weller: Yes, this follows up directly on what Professor Schmitt just said. The UK is the global brand leader on international rule of law, by having a common-law system and this very distinguished democratic and rule-of-law legal tradition. The US has filled that role to some extent but, as we just heard, it is relinquishing it and has done so. I would go even further than Professor Schmitt: this will last beyond the next three years. I think this is a fairly permanent development that any successor Administration, especially if Republican, will probably continue in some way.
The UK has a particular opportunity, and perhaps even responsibility, to step up to the plate for the rule of law. We have had the Attorney-General, the Minister for Justice and the Foreign Secretary starting to make important statements on the rule of law. In the House of Lords, your Constitution Committee has, over the past several years, issued very important and quite detailed instruments on the rule of law, not only as a national practice that we want to propagate around the world but also the international rule of law, so there is quite a lot we can build on—and, of course, there is always Chatham House to help.
At the moment, we are arguing for the establishment of something like a global coalition for international rule of law. We want to build a dialogue between all of those southern states I mentioned a moment ago and Mr Carney’s medium powers, including the Europeans but also Asian states that have a great interest in maintaining a global rule of law to articulate together, in a technical sense, what the essential elements are of the rule of law and come up with recommendations as to what friendly Governments can do to enhance this practice. We are hoping that, as a second step, there can be a high-level international panel to reflect on these recommendations and amplify them to Governments.
We are proposing this at the moment to HMG and some other Governments. Initial responses are very encouraging, because so many of us are throwing up our hands and saying, “It's dreadful. The rule of law is under threat and we have to do something”, but let us actually do something. Let us work out what is essential for the rule of law, let us root it on a genuinely universal consensus, including from the south, and let us form a coalition of states that are willing to act together to encourage practices that support the rule of law.
Q243 Lord Darroch of Kew: Thank you to both our witnesses for the striking clarity of their contributions. It has been a terrific session. You have both been clear about the unlawfulness of the Trump Administration's Venezuelan adventure, and you mentioned the clear unlawfulness of the Russian invasion of Ukraine. Some commentators would add to those two big examples some of the Israeli actions in Gaza, the US’s past attacks—and maybe future attacks—on Iran, and Chinese activities in the South China Sea.
This is a two-part question. First, is this the worst in terms of lawlessness sweeping the world that we have seen since World War II? You cannot open a newspaper now without reading articles about the collapse of the rules-based international system. Is that how you see it? Is this the worst that we have had in the last eight decades or so?
Secondly, while Professor Weller may have answered this partly in what he just said, do you have specific, substantive ideas on what the UK—the British Government—can do to try to repair, restore or maintain the international legal order, perhaps in coalition with other Europeans and so on, or do you think we are past the point of no return?
Professor Marc Weller: No, we are not past the point of no return. We are only seeing the beginning of Governments realising that there is now a need to stand up both for values and for the technical functioning of a rule of law—not the kind of idealist vision that academics in their ivory towers, which you see around me at the moment, come up with because they have nothing better to do. But international law is practical politics cast into law: these are rules that states themselves have developed in order to facilitate stable, foreseeable relations and for their safety and security.
You are right that, over the past 20 years, there have been very significant challenges to the way in which we understand international law, especially where the use of force is concerned. That is in part due to what some call new security challenges: vigorous, violent emanations of terrorism that take on the kind of threat that previously only states could muster against us. There has been the issue of weapons of mass destruction and Iraq in 2003, where that played into it. The argument that states can now take up some of the functions that the UN Security Council has not fulfilled in granting mandates to address something like Iranian nuclear weapons, let us say, and act instead internationally—and claim to do so on behalf of the international community as a whole—is somewhat less credible, unless we build coalitions and broader consensus that supports steps of this kind.
Yes, there have been significant challenges. Is it the worst of the past 80 years? I do not know. There have always been challenges. The Cold War was a huge challenge and, ironically, we emerged with a pretty clear understanding—I think Professor Schmitt would agree—on what the rules on the use of force were at the end of the Cold War. There were rules of the road and firm international legal understandings of what is permissible and what is not.
Perhaps we have not done enough over the last 10 years—certainly over the last year—in our duty of rule maintenance: to speak out when the rules are violated, identify the violator, support the victim and call out a violation for what it is. Greenland has helped us to cross that point, because it was just so clear. It was directed against a small state, one that really stands for the rule of law and good practices worldwide, which was suddenly confronted with this strange threat, even a possible invasion.
I am not sure that it is the worst situation but, even if it is, that can only mean for us that we have to work extra hard to maintain the rule of law, because there is no alternative to it. The rule of law has, rightly, developed over the last 500 years as something that helps us to govern ourselves through an international system that, by and large, works and there is no alternative to that, unless we want to come back to ad hoc tactical alliances, betrayals, wars of interest or preventive and pre-emptive wars. We hear some of these words again, and that is to be resisted.
As I said earlier, the UK has key, core international standing. Some of its significant soft power is in fact based on its reputation as a brand leader on the rule of law. I think we can do more to help make that visible and build on it, perhaps by creating, as we propose, a more analytical approach to identify what the rule of law actually is and confirm that there is overwhelming international support for it, and developing specific steps to strengthen it over time.
My view is not defeatist. Instead, it is more to say: the challenge is there and we have now seen what it is. It is a broad-based, significant challenge, not just from the US; it is also some other states. But if what the US is now pioneering were to be copied by the Russians, Chinese and others and then perhaps by larger medium powers—Pakistan, India, Nigeria—in their own backyard, as mini superpowers, we would end up in a very unstable and very difficult international system. So our call is certainly, first, to commend you for drawing attention to this issue that has risen, but also for us to work together and form answers that are constructive and forward-looking.
Professor Michael Schmitt: I think that it is the worst we have seen since the Second World War. There were other situations, such as Vietnam, but at least in the case of Vietnam we could make an argument that the operations were lawful—an argument that was not silly. Any argument that operations in Venezuela or a move against Greenland, or Russian operations into Ukraine, are lawful are simply silly arguments. They are nonsensical and with Vietnam we did not have that.
We did have the Cold War and I am a cold warrior. I was a nuclear targeting officer facing Soviet forces; I was stationed in Turkey at the time. But I have to say that during the Cold War, even when we were doing nuclear operations, we understood the rules of the game. We discussed the distinction between, for example, counterforce targets and countervalue targets. We talked about escalation of nuclear operations, so at least we were thinking in the patois of a rules-based order. But that does not seem to be what is happening here, when we have the leader of the most powerful country in the world saying that he will be guided by his own morality. Of course, we probably have strong views on the extent of his morality.
What is different here are the players. Here we have two of the most powerful countries just acting with impunity and finding international law completely irrelevant to their decisions, so that is what is new. What do we need to do? Well, I think we need to be more like Canada. We need to start speaking truth to power, and that requires courage. It requires courage as an individual and as a nation. Now when you speak truth to power, sometimes there are short-term costs; that is the reality of being guided by your character and your values. But in most cases, when you assume those short-term costs, over time what you will find is that you have long- term gain.
I am not completely naive. You have to hedge your bets. If you are going to stand up and start calling a bully a bully, or stand up and quit trying to reason with that bully and call them out for what they have done—acted unlawfully—you need to hedge your bet. The Secretary-General of NATO recently talked about the ability of NATO to function without the United States. I spent many years in NATO and I have been following it. I am involved in NATO even now and listen, you cannot do it without the United States unless you hedge your bets.
This is really a time for reflection for your nation and for the other medium powers in the world. You are either going to follow the path of a rules-based international order or you are not. If you are, you are going to have to assume cost and risk, and you need to compensate for the possibility that those costs and risks will become real, but I think it is worth it. I would be disappointed in your nation, as I am extraordinarily disappointed in my own, if you do not step up and do the right thing.
Q244 The Chair: This is a good point to come to a conclusion, but I would like to ask a final question because I am in the position, as an individual, of having ordered an attack on a sovereign nation state without a UN Security Council resolution. In April 1999, I personally ordered the Royal Air Force to commence attacks on what was then the sovereign territory of Yugoslavia—of Serbia at that time. The Foreign Affairs Committee of the House of Commons examined the illegality or questionable legality of it and concluded that it was illegal but justified.
I am just wondering, in the world that we have, whether we do excuse things and whether the responsibility to protect, which was a policy adopted by the United Nations General Assembly, does not in some ways contradict the absolutist view of international law, as it stands at the moment.
Professor Marc Weller: I must make a declaration of interest here. I have served as a legal adviser to Kosovo for the last 40 years or so, on and off—less successfully over the past few years. The answer to your question clearly depends on whether you believe that international law admits to the additional justification, for the use of force, of humanitarian intervention.
In the case of Kosovo, it was not that one state decided to invade its neighbour, perhaps in an abusive way, on the ground of actual or invented humanitarian motivations, as Russia did in relation to Ukraine. You will remember that it argued that it was defending the population of the Donbass from genocide. But in the case of Kosovo, we had two Chapter VII Security Council resolutions that determined that there was a threat to the peace and that the cause of that threat was an overwhelming risk to the population. Remember that we had come through Rwanda and Bosnia, and we were persuaded that the next round of the same thing was coming, with an overwhelming, imminent risk to the population.
It offered three things that had to be done to avert that threat, which were: a cessation of attacks on civilians, access to humanitarian assistance and a willingness to negotiate a political settlement. It was not as unilateral as some made out afterwards. It was in fact an implementation of aims which the Security Council, acting under Chapter VII, had at least set out clearly, although it then lacked the consensus in the end to grant the mandate. There was an overwhelming threat to human life and, to this day, it is the population of Kosovo who wander through Bill Clinton Streets and Tony Blair Avenues in Pristina, in appreciation of what they felt was mainly a war on their territory, but still a liberation, so I am a defender of humanitarian intervention.
The UK has actually done very well. You will remember Syria, where chemical weapons were use in attacks—the first time around, they were not answered; the second time, they were—and where clear limiting requirements for humanitarian intervention were set out. I think that is again an element of rule maintenance. We have seen in Rwanda and Bosnia that we cannot stand by and let these things happen. On the other hand, we do not want to have an open-ended Ukraine/Russia-type opportunity to justify the use of force. The UK did step up and offered very firm and very good criteria for the absolutely exceptional circumstances where the use of force for humanitarian intervention was lawful so, Lord Robertson, I am entirely on your side there. NATO was really quite cautious in having a legal basis, although few states were willing to express it as formally as, happily, the United Kingdom and, I think, Belgium as well did at the time.
Professor Michael Schmitt: I remember Operation Allied Force very well because I was wearing a blue uniform at the time. I was a member of the United States Air Force when we were engaged in those operations in 1999 and as a lawyer, of course, we were very interested in the legal basis. In my personal view, that operation was unlawful. Yes, we were talking about humanitarian intervention at the time because of what had happened in Rwanda in 1993 but, as a matter of international law, I do not believe that international law had moved to their point by 1999. Now, Operation Allied Force may have contributed to the subsequent movement of the law in that direction, but not in 1999.
However, if the decision had been in my hands, I would have done exactly the same thing. The reason is because we must understand that international law is a body of law that looks behind us. Very seldom does international law look forward; it is a body of law that responds to bad things that have happened. It changes either through treaty or through the crystallisation of what we call customary law. It is a reactive body of law in most cases, so we should not be surprised if we come to a situation that was not in contemplation at the time that the relevant rules matured or crystallised. International law does not always work; that is why I am not one of these people who focus on the absolute nature of it. We have to be willing to do things that international law would not contemplate, because it did not anticipate them happening.
I remember vividly what was happening in Kosovo. At the time that Operation Allied Force was launched, they were uncovering graves with scores of people buried—they were Kosovars, ethnic Albanians. There was clearly an ethnic cleansing going on and only we could stop that ethnic cleansing. An operation was crafted that was very surgical in character, an operation designed to do that and that alone. I am one of those who believe that the operation was unlawful at that time, but it was the right thing to do and I applaud it.
If we move forward, we see the United Kingdom now taking the position in the aftermath of Syria, or in response to it, that humanitarian intervention is permissible under international law. You must recognise that that is a minority position; most states and most international lawyers do not agree with it, but I have to tell you that I certainly see the law moving in that direction. That is how international law develops: in the breach, in the sense that something happens that we did not anticipate, and we began over time to respond to it.
If the United States could make some sort of argument that would be justified—say, “We need to stop drugs coming into the country”—and if it was a coherent argument and consistent with the facts, I am willing to accept that possibility. But listen, it is simply not the case here. It is crystal clear that virtually all of the US operations in Venezuela were unlawful. It is crystal clear that virtually all of the operations conducted by Russian forces in Ukraine are unlawful. This is not a Kosovo-Operation Allied Force moment in international law.
The Chair: Thank you very much for that clear message. I do not know whether there are any other questions round the table. If not, I will thank you very much for a remarkable evidence session. I tell you that you will get a transcript of the proceedings of the committee, which you should return to us with any minor changes that you require. We are very grateful to you for your time and for the advice that you have given us.
