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We will begin with an important and I feel neglected question:

Why do governments create new laws?

You can answer this in several ways. Most obviously, if you are an optimist, new laws deal with new social issues that have not been addressed before.  If you are a pessimist, the answer is that governments want more power and control over their populations. The reality probably lies somewhere in the middle. Some governments genuinely believe that government and thus new laws can be a force for public good. Some governments are run by people who are only interested in power. Some governments may genuinely believe they are acting for the public good, but may gradually over time assume that they know what is best for the people and will thus become more authoritarian. This is common in governments that have been in power for long periods of time, around 8 years or more being a good guide. It is part of the reason Tony Blair gave for only serving as British Prime Minister for 10 years and why the US Presidency is term-limited.

Human rights laws are different however, in that they are specifically designed to take power from governments and give them to the people. They are the one set of laws that, if they are effective, actually make the state weaker. Note that I include freedom of information laws in the broad umbrella of human rights law. Of course, the pessimist points out that some human rights laws are simply a sham. Russia and for that matter Ukraine, do not seriously believe in the European Convention on Human Rights. They are parties to this treaty so that they can say they are parties to it. Yet, one cannot dismiss all human rights in this way. The Human Rights Act 1998 (HRA) has impacted on the freedom of action of the British Government. It has forced them to amend anti-terror laws, to release people detained without charge, extend legal aid, develop a coherent law on privacy, provide greater protection for employees and recognise transgender rights, amongst many other things. Human rights laws sometimes really do what they are intended to.

Human rights laws are designed to set out fundamental principles that the state believes in and to then entrench or protect them from being overturned by subsequent action by the state. To continue using the UK’s Human Rights Act as an example, the Act itself was created in 1998.  In 2001, the UK Parliament created the Ant-Terrorism Crime and Security Act (ATCSA). Sections of the ATCSA conflicted with the HRA. Using the traditional doctrine of Parliamentary Sovereignty, the ATCSA should have overridden the HRA, but the HRA is designed in such a manner that this is not easily done. Breaking this done into simple terms, the legislative developments look like this:

UK Parliament creates HRA in 1998. This sets out human rights principles, like the right to Liberty. These rights are protected from future repeal;

UK Parliament creates ATCSA in 2001, which tries to override certain human rights, including the right to liberty.

The Courts upheld the principle set out in the HRA, that these rights were designed to be fundamental and to override future attempts to repeal them. A political way of analyzing this is that the 1998 Parliament calmly set out a coherent human rights system. The 2001 Parliament, as part of the general hysteria of a post-9/11 world, sought to override this.

An analogy can be found in the mythical Greek figure, Odysseus:

In Greek mythology, sailors were lured to their deaths by Sirens, creatures who sang a beautiful and irresistible song.  Entranced by the song, these sailors steered toward the call and their ships were destroyed on the rocks.  This, incidentally, is where the modern usage of the word ‘siren’, as a warning noise, originates.

In order to avoid this disaster, Odysseus ordered his crew to plug their ears with beeswax and to tie him firmly to the ship’s mast.  On hearing the Sirens’ song, Odysseus himself could not resist and begged to be untied, but since he had instructed his crew to ignore him, they refused his pleas.  Thus, the ship was safe because Odysseus warned his crew that in the future, he might make bad decisions, and they should ignore him.

Hopefully, the analogy is obvious: governments will legislate in a reasonable way when they have the luxury of time and perspective, but will legislate badly, in violation go human rights, when they are reacting to events. The problem is, that a large chunk of legislative action is responding to crises. Think of the health crisis of the last 24 months and how governments everywhere have given themselves extraordinary powers to regulate their citizens freedom of movement and expression. By definition, this legislation is passed quickly. By definition, it is often disproportionate, since governments would rather be seen to be overreacting than underreacting. The question then becomes, how strong are the bonds that tie Odysseus to the mast? It is reasonable to speculate that if the Human Rights Act was due to be debated by Parliament in 2001-2, rather than 1997-98, it might never have been created. The British Government would have seen the new terrorist threat as a greater priority. Or perhaps they would have created a HRA, but not one that much resembles the one we now have: a watered down and worthless version. Covid has presented another challenge to the supremacy of human rights law. Perhaps it is necessary that human rights give way to legislation on public health, but we should be under no illusion whatsoever that this is what is happening.

The law of the sea is one of those aspects of public international law that students tend to learn about in isolation. Many public international law courses address it, but one usually only gets to devote a single week to it. It is often treated as a kind of poor relation to other aspects of international law. This is because it seems to lack the conceptual and intellectual grandeur of other types of international law. The law of the sea just seems to be a series of rules. These rules are highly specific and often dependent on precise technical definitions from other academic disciplines; geography, geology and cartography being the obvious examples.  Approaching the pedagogy of the law of the sea from the opposite perspective can also be illuminating. For some professors, tired of students complaining that international law is imprecise and mired in political controversy, being able to spend a week teaching actual rules can be a welcome break.  Yet it is usually only a week, perhaps two, that are devoted to the subject, before its back to the weightier and more ‘serious’ problems like jurisdiction and international criminal law.

This is a shame, because the law of the sea has many interesting and diverting elements. The law of the sea is a thematic description: it applies to all of the law that regulates the international waterways and resources of the world, as opposed to those which fall into the jurisdiction of states themselves. This means that the law of the sea cuts across many different types of law: it considers territory and title, nationality, criminal law, the law of armed conflict, the law of property and contract law, amongst many others.

In this blog entry, I want to focus on a recent development that was widely reported in the media, to highlight two aspects of the law of the sea:

1. The law that governs jurisdiction and resource use;
2. The law of armed conflict.

I will begin by explaining the issue itself, before going into a general discussion about the applicable international law, followed by some conclusions.

The issue

Russia currently has thousands of troops massed on the Ukrainian border, but we are not addressing that here – there are podcasts that do this already.

In this crisis, the EU and NATO have both stood up, in very weak and ineffectual terms, for Ukrainian independence. One of the EU member states is Ireland. It is not a member of NATO. In fact Ireland has almost nothing in the way of a military and has been a neutral and practically unarmed state since its creation in 1921. Yet, as an EU member state, Ireland has followed the EU line on Ukraine, which is to say that it is up to Ukraine itself whether it wishes to lean towards the West, and thus the EU, or the East, and Russia.

On 24 January 2022, the Russian navy announced they would be holding a live-fire exercise 150 miles from the coast or Ireland. A live-fire exercise is pretty much what it sounds like: the testing of real munitions that go bang and can potentially kill lots of people if they are hit by them. This was perceived in Ireland as a form of intimidation by the Russian government, against what is arguably the most militarily weak of all EU member states. The natural question thus posed is whether this is lawful under international law? The short answer is yes. The longer answer is also yes, although with a little more explanation.

The law – the short answer

States exercise jurisdiction over their own territory, with some minor exceptions. Territory is land of some kind, whether its sand, soil, coral or rocks. States exercise jurisdiction over these landmasses, with the exceptions being things like embassies and military bases. You sometimes hear people saying things like ‘the US Embassy in London is considered American soil.’ This is obviously ridiculous when you think about it for more than 5 seconds. How can land in London be American? The answer is that the US Embassy in London is clearly British soil, but that only the American government can exercise jurisdiction over the embassy grounds. The British police cannot enter the US embassy unless:

• The US Embassy says they can; or
• The UK government announces that the US Embassy is being closed and the staff ejected. Even then, the international law on diplomatic relations would stop the British authorities from subjecting those ejected members of US Embassy staff to arrest or detention. All the British government could do was make them drive to the airport and catch a flight back to Washington.

Broadly the same reasoning applies to military bases, such as the US air bases in the UK. An example would be RAF Mildenhall. Note that these bases are referred to as ‘RAF’ even though they are completely under American control. This is to take some of the political tension out of the reality that British territory is not necessarily being used in a way that promotes British interests.

Aside from these exceptions however, states exercise jurisdiction over their territory. They also exercise jurisdiction over a coastal range of 12 nautical miles (nm) of Territorial Sea. Every state with a coastline enjoys jurisdiction over this area, with the obvious exception being where the distance between two such states is less than 24nm. In these cases, you simply divide the distance in half to arrive at the territorial jurisdiction. So, if the distance between state A and state B is 20nm, they would each enjoy jurisdiction over just 10nm, unless they agree differently.

States enjoy complete legal jurisdiction over this area. If you murder someone on a ship 11nm from Clifton Beach, then Pakistan law applies. However, there are some specific rules on jurisdiction which reflect the reality of sea transportation. For example, states have a duty to allow vessels from other states to transit through their waters, providing they meet the requirements of ‘innocent passage.’ Innocent passage means that the vessel is not doing anything prejudicial to the interests of the territorial state or the international community. Examples of this would be carrying illegal narcotics, or transporting persons for the purpose of slavery. Warships use this right all the time and merely being an armed vessel of war does not render passage ‘non innocent.’ Armed vessels are allowed to transit through Territorial Sea. Obviously, the Russian live fire exercise would be outside Ireland’s Territorial Sea.

The law – the long answer

Traditionally, the distance beyond the Territorial Sea has been The High Seas. This is sometimes rendered, not quite accurately, as International Waters. For our purposes these terms can be used interchangeably. The High Seas are beyond the jurisdiction or control of any state, and are an example of a Global Commons Space, which is supposed to be used for the benefit of all the peoples of the World.  A problem was identified with this system in the second half of the Twentieth Century, namely that the coastal seas near states tend to be rich in resources. This was particularly associated with the discovery of oil and gas resources, often located close to states coastlines, but beyond 12nm.  Since these were classically considered The High Seas, they could not be appropriated by any single state.  If left as part of The High Seas, it was obvious that richer states would be able to exploit these resources at the expense of poorer states. There was a growing movement in favour of an Exclusive Economic Zone (EEZ) for coastal states. This would still be considered The High Seas, but the coastal state would enjoy the right to exploit all the resources within the EEZ. They could either drill or fish in the EEZ themselves, or license companies from their own state or any other state to do so. This idea was finally accepted as law in The United Nations Convention on the Law of the Sea 1982 (UNCLOS). UNCLOS set the limit for EEZ’s at 200nm, with the same proviso as for the Territorial Sea, that EEZ’s could not overlap with each other.

Now we see the problem – the proposed Russian exercises were not within the Territorial Sea of Ireland, but they were within the EEZ.  Ireland would be powerless to legally object to the exercises, since they are military in nature and not commercial. Hence, the Irish Government described them as ‘unwelcome.’ It is obvious that Russia deliberately decided to locate the exercises within the EEZ – there is no logical reason why they should be there. Indeed, on 30 January 2022, the Russian Government announced the relocation of the exercises to outside Ireland’s EEZ. This seems to be a political move – the Russian’s may have never intended for the exercises to take place within Ireland’s EEZ and they certainly lose little by moving them. They can use this decision as a way to look reasonable.

Conclusions

Russia was never proposing to do anything illegal. We need to draw a distinction between behaviour that is unlawful, in that it violates legal norms, and that which is merely unpleasant. This is a distinction that is sometimes lost in International Relations. This distinction is also just as frequently lost in the noisy world of international law, where the precise nature of the rules is often harder to determine than in national law.

The United Kingdom legal system is dualist. Almost every other legal system in the world is monist. Anyone who has studied the UK Constitution is aware of this. They may even be able to explain it a little bit. A monist legal system treats international law and domestic law as in broadly the same category, whereas a dualist system treats them as entirely separate types of law.

This does not get us very far however and is really just an example of the kind of jumbling around with words that bad lawyers often undertake. The real test of whether we understand a legal concept is this:

Could you explain this concept to a layperson, so that they really understood what you meant, as opposed to them simply saying they understand, to shut you up?

Achieving this is avowedly not my purpose in this blog entry. Rather, I want to develop a complex, nuanced and technical understanding of the dualist/monist debate, albeit using simple language. I will leave the tedious business of explaining it to lay people to you.

Monism is the logical place to start, since monist legal systems are by far the most common and the idea of both types of law being unified under one theoretical framework sounds attractively simple. A monist legal system starts from the proposition that all law is law. National law is that developed by the nation state and is reflective of the unique political, historic and cultural circumstances of the state and its people. There are more than 193 legal systems in the world and no two are the same. Precisely how many legal systems there are is open for debate, but I would suggest it is well over 400 – if we consider that there are at least three in the UK, 51 in the USA, etc. We can sweep them up into broad categories, like ‘adversarial’ or ‘civil law’ but these are only useful in a descriptive sense. Monism recognises the particular legal system(s) that apply in the state in question as valid law. It also recognises international law as valid. International law, which is that made by states and international organisations, applies in monist systems just as national law does. This raises an immediate conceptual and practical problem: what happens if national and international law conflict?  The answer did not matter greatly until recently, since international and national law tended to address very different subject areas. However, the recent growth of human rights and international criminal law has meant that the two legal systems increasingly overlap.

The solution adopted depends on the state in question. Some simply place international legal obligations above national legal obligations. This has the attraction of elegant simplicity, yet suffers from the political downside that it appears anti-democratic: the populations of states have no say in the creation of international law, so why should it overrule national law? Other states adopt more nuanced positions, where it depends on the exact nature of the international law. If it is one considered to be jus cogens, that is, of the highest level, then it overrules national law. Mundane rules on things like trading tariffs would not be jus cogens, but the prohibition against torture would be. Still other states adopt the view that international law is applicable alongside national law in their legal system, but it only creates rights and obligations if certain processes like ratification of a relevant treaty have occurred. This has been the position of the US, where the Senate has to ratify treaties. Yet it is possible to circumvent this: when the Senate refused to ratify  The Strategic Arms Limitation Talks II (SALT II) Treaty, President Reagan simply stated that he, as Commander-in-Chief, responsible for the military, would ensure that the terms of the treaty were in fact met. Other states simply rely on the idea that they can always ensure harmonious interpretation of international and national law. This is an exercise in laudable, if somewhat naïve optimism.

The point is that monism is not the monolithic force it is sometimes presented to be. Nor is dualism. Dualism is often described as a legal system where the two types of law have no contact with each other. There are national laws, which the national courts enforce. Then there are international laws which they do not enforce. From this people also make a conceptual leap, one which we must now address before we can finish explaining what dualism really means.

The conceptual leap, is that dualist states are suggesting that international law is not really law. This follows from the bizarre assertion that law is only law if it is enforceable. There are several problems with this:

1. International law is enforceable – it is clearly enforced in monist systems;
2. International law is also enforced by international courts and other institutions;
3. International law is frequently referred to and championed as law by the British Government;
4. Law does need to be enforceable to be law. This confuses two separate ideas: law as rules and law as process, both of which are equally valid methods of explaining law. Law as rules is heavily dependent on enforcement, but law as process tells us that a law may be followed by the internal self-correcting action of the legal individuals involved, without any need for an enforcing authority. Or more simply, it is self-enforced by the individual actors within the system. This is certainly true of international law – violations are incredibly rare and attendant court cases even more so.

So even dualist states must accept that international law is law. They even accept that it is binding and capable of enforcement. This is the same as in monist states. The difference is that dualist states claim this enforcement and binding quality happens in a different way than in monist states. The way that both the British executive and legislative broadly view international law through their dualist lens is a follows:

5. International law is binding on the UK itself and can be enforced through international courts and other international legal fora, such as the United Nations;
6. International law does not create specific rights and obligations for British legal persons before British courts unless it is implemented into UK law via a Statute;
7. But where there is ambiguity in the interpretation of any UK law, whether Statute or Common Law, it should be interpreted in a way that is consistent with the UK’s international law obligations, as understood under point 5), supra.

It is point 7) that is the one that people seem to forget when discussing dualism. Recent decisions on Brexit by the Supreme Court suggest that the national courts of the UK are embracing the application of international law through an expanded understanding of this interpretive obligation. Far from international law being irrelevant to the UK courts, one could argue that given a sufficiently robust usage of this interpretive obligation, it is only to override UK law if there is a specific UK law obligation that requires international law to be ignored.  I would describe this as a ‘thin’ version of dualism. I would further suggest that if the UK Supreme Court continue to interpret dualism in this thin manner, it may become so thin that it is practically invisible.

Oh no! Not this again!

This has been a standard essay question on constitutional law exams for at least 27 years. I can be this specific, because that was when I did my constitutional law final exam at Durham University. Since then I have graded thousands of papers at various institutions and this question returns over and over again. I think there are three reasons for this, of varying significance:

1. The United Kingdom really should have a codified constitution. It is simply a good idea and would make for better governance;
2. This question takes absolutely no intellectual effort to write. You can draft a question like this in about nine minutes;
3. There is at least the suspicion that weaker students, those who do not grasp all the intricacies of the subject of constitutional law, will have a chance at answering this question. The one thing that every law student knows about the UK’s constitution is that it is largely uncodified. In my experience, it is true that anyone can answer this question. However, they mostly answer it very badly. There are no shortcuts to academic success.

Obviously, I propose only to address point 1, leaving points 2 and 3 largely untouched.

The first point to note is that this was a good idea in 1995 and is still a good idea today. It was presumably a good idea before 1995 as well, but I was at school then, studying US history and like my most British Subjects, my knowledge of the UK constitution was something between none and zero. Only three states in the world have uncodified constitutions, these being Israel, New Zealand and the UK. Note that both Israel and New Zealand were part of the British Empire, so largely inherited it and chose not to make any changes. Thus, the burden is really on the United Kingdom to explain its exceptionalism. There are roughly 193 states in the world. One says ‘roughly’ because it is surprisingly hard to be precise on this matter, as statehood is dependent on recognition by other states and this is an intensely political act. Three of those states have uncodified constitutions. Thus, just 1.5% of the states in the world have uncodified constitutions. Approaching  this through aggregate population produces an even lower figure, largely because hardly anyone actually lives in New Zealand and Israel: there are about 8 billion people on Earth now. Just 82 million of those live in the three states with uncodified constitutions, or just over 1.025%. The overall point here is simple – uncodified constitutions are a rare thing. This does not make them bad, but it does mean that those who would endorse them need to be able to explain why. Those who live under a codified constitution can simply say they are the standard.

I will demonstrate that uncodified constitutions are bad however. Rather than go through every single detail of why they are bad, I propose to just look at two broad, thematic reasons. For the sake of simplicity, I will label these the high reason and the low reason. These names will make sense once we get into the discussion.

The high reason is that uncodified constitutions lack the courage of their convictions, for the simple reason that they have no convictions to follow in the first place. I would point to the specific usage of language here: we generally do not talk about constitutions as being ‘not codified‘, because this implies a positive choice, the choice here being not to do something. Rather, we use the term uncodified, which suggests that codification is an event that might happen at some point, but has not happened yet. An uncodified constitution is thus not the  result of a positive choice, but of a simple failure to get around to the task. It results from a form of constitutional apathy. This fits in with my general observation that the British are a lazy people, at least when it comes to intellectual matters. They simply have not been bothered to write the thing down in a coherent form. This also links in with another misunderstood British quality, which I would argue does not exist in the way many outsiders believe it does: tolerance. The British are not really tolerant of differences, because that would imply some form of engagement with different cultures and values. Rather, the British simply do not care about difference. This explains why the UK has not legislated to regulate religious dress, the way some European states have: it is not because the British celebrate religious and cultural difference, but more because telling people what they can and cannot wear seems ridiculous to them.

The low reason is that an uncodified constitution is difficult to love. It is next to impossible to know and understand an uncodified constitution. This is the reason why nobody in the UK has the vaguest idea of what makes up the UK constitution. The ignorance is so deep, that in comparison, British subjects know far more about the US constitution than their own, because they have been able to pick up bits from watching American TV and film dramas. If you ask people in the UK what the Second Amendment to the US Constitution says, a reasonable number will be able to tell you it is the right to bear arms. If you ask them what Article 2 of the European Convention on Human Rights is (perversely enough, it is the right to life), the successful response rate would be much lower.

Why does this matter? Of course, on a practical level, it does not. Most British subjects will happily get through their lives without ever having to rely on their constitutional rights. But this misses the point: a constitution is not just a tool to be used, it is also a thing to be proud of. It is part of a nations and a peoples identity. It is a good in and of itself, not just in terms of how it is used. A codified constitution is, to use modern vernacular, ‘owned’ by the people. An uncodified one, by definition, is harder to follow and therefore is owned by an intellectual and political elite.

The final question is, why has codification never happened in the UK? The answer is laziness again – there is no need to fix it, because it ‘works’. Yet recently, it has not been working especially well. To use an analogy, if your car keeps starting every time you turn the ignition key, you could make an argument that it ‘works’ and will never break down. Thus, you do not need to get it serviced. Of course it will eventually break down, in the most inconvenient place and you will have no one to blame but yourself when you are stuck in the middle of nowhere at 3am.

With apologies to everyone who studied for a geography degree, it is not the most difficult or stimulating subject. In my time as an undergraduate we derisively referred to it as ‘colouring in.’ As long as you could remember that the land was brown and green and the sea blue, it did not seem that one could go far wrong.

I remain skeptical about the value of geography as an academic subject. Nobody I speak to seems to have much grasp of where anything actually is in the world, and if we really want to find this out, we have phones and Satnav and rolling down the window of your car and asking a stranger.

The above, is of course, written with gentle irony. Geography is presumably as difficult as history. Actually, that may not be a good comparison, as history is itself a subject of doubtful  value –  what exactly is history? A better comparison might be with economics, or even law itself. The value in studying them is not so much that they have practical value, which is questionable, but that they help to shape and discipline the minds of the students. Once you start studying geography seriously, you see the world through the analytical lens that it so requires. This is certainly true of lawyers, who lose some of their basic humanity as they become mired in the complexities of the subject. Right and wrong, which serve us well as moral concepts until we are 18 years old, may not survive the study of a law degree.

My real purpose here is to discuss how geography affects constitutional law, with specific reference to the nature of Capital cities and why they are located where they are.  My motivation for this stems from some recent developments in this area.

Capital cities are usually those where the seat of government is located. We sometimes use terms like ‘cultural capital’ to distinguish the actual capital from a commonly misidentified one. This can sometimes be quite confusing – why is the capital of Australia not simply Sydney? The answer to this lies in the nature of political influence and power itself.

It is common for the governmental capital to be the same as the cultural capital and this is usually the most famous city of the country. London, Paris, Rome and Tokyo fall into this category. However, the capital of the USA is Washington, not New York and the capital of Australia is not Sydney, but Canberra. The reason why these capitals are located in less populous and indeed, in the case of Washington, much less pleasant cities, is that these are federal constitutions. It was felt that locating the capital within an existing federal state would give that state too much influence. So Washington is not in a state, but within the District of Columbia (DC). Canberra is not in a state, but within the Australian Capital Territory (ACT). Washington DC is the most interesting historical example. In the early years of the USA, the capital had been Philadelphia. When choosing where to place it permanently, the young Americans chose the place with the worst possible climate, to discourage people from wanting to spend time there. This would lead to a government that was small and only met to do the bare minimum of business. Washington is a former swamp, with terribly hot summers and freezing winters. Unfortunately, the invention of indoor heating and air conditioning has rendered these plans irrelevant.

More recently, in 2005 Myanmar changed its capital from Yangon to Naypyidaw, with the new city lying in Naypyidaw Union Territory, a similar arrangement to the USA and Australia. This move, although involving a large amount of infrastructure and associated investment, was announced very suddenly and with little warning.

Iran is now proposing to move its capital from Tehran to Qom, the religious centre and hotbed of the Iranian Revolution of 1979. The problem the government has with the existing capital is similar to that seen in Myanmar: the population of Tehran are too liberal. This often happens when the administrative or political capital is also the largest city or the most culturally diverse. Imagine if New York was the capital of the USA.

My point here is that, far from being an exercise in colouring in, geography is intensely political and of relevance to constitutional lawyers. In 2009 the UK established its new Supreme Court. In order to ensure judicial independence and separation of powers the new Court had an expensive move to a new facility. Even small-scale geographical movements can have constitutional significance.

In closing out this discussion, we should of course mention the country that has really embraced the constitutional importance of geography, arguably to an excessive degree. The Republic of South Africa has three capitals – one for each branch of government.  The executive capital of South Africa is Pretoria, the legislative Cape Town and the judicial capital Bloemfontein. This may be taking things too far, but probably reflects South Africa’s troubled history.