International law is not sacred – but securing our borders is a duty

The ECHR is proclaimed to be a moral arbiter, but its supporters can’t point to how the court benefits us

It is one of the absurdities of our age that, across the West, international institutions are revered simply because they are international, and international law is treated as holy writ: unquestioned, unchallenged and unassailable.

This week, Parliament will hear the usual homilies about the sanctity of international law. As MPS consider the Safety of Rwanda Bill, those defending the European Convention on Human Rights, and the court that enforces it, will talk meaninglessly about “our place in the world”. They will even compare Britain to Belarus and Russia. None will deign to suggest workable plans to stop the flow of illegal immigration across the Channel, and few will extol the real benefits that derive from our acceptance of the jurisdiction of the Strasbourg Court – because there are none.

While the Rwanda plan was originally stopped by a Rule 39 interim injunction by Strasbourg, the policy has since been blocked by our own courts citing Convention rights. The Court of Appeal found Rwanda was generally safe to send migrants but, noting Article 3 rights, against torture or inhumane or degrading treatment, said there was a risk that migrants might be sent to their home countries.

The Supreme Court went further, questioning the ability of Rwanda to fulfil its commitments.

Parliament may now pass legislation declaring Rwanda to be safe. After all, Parliament is sovereign. Within our constitution it is the supreme legal authority, capable of making and ending any law: no court can overturn any law it makes. This is why, fortified by a new agreement with Kigali giving further assurances, the Safety of Rwanda Bill will succeed in preventing the British courts from blocking the policy in principle by asserting that the country is generally safe.

But the problem we face is far more complex. First, the Bill does not prevent migrants making claims based on their individual circumstances. We can be sure that many of those facing removal to Rwanda will invent claims based on Convention rights to frustrate their departure. Perhaps some flights will eventually take off, but the courts will be flooded with claims and the policy will founder.

The second problem is that Strasbourg is not bound by an Act of Parliament, and some will inevitably petition the European Court and argue that Rwanda is not generally safe. It may take years for that court to rule, but in the meantime it will probably issue another Rule 39 interim injunction, seeking to block the policy temporarily.

A ruling by Strasbourg that Rwanda is not generally safe – pitting itself directly against primary legislation passed by Parliament – would create a crisis far greater than those that followed rulings on Abu Qatada and prisoner voting. It would prompt a stand-off that could lead to Britain’s departure from the Convention and the Court.

More immediately, the issuance of a Rule 39 injunction would cause a different crisis. These injunctions were never agreed by national governments, but were granted to the Court by itself in 2005. And since last year, ministers have had the explicit sanction of Parliament, thanks to the Illegal Migration Act, to ignore them. Rishi Sunak has said he “won’t allow a foreign court to block us”, but there remains opposition from some ministers and officials to a decision to ignore an injunction.

The Bill needs to be strengthened, as Robert Jenrick, the immigration minister until late last year, has argued. But beyond the details we face a bigger decision.

Do we suborn ourselves to the jurisdiction of a supranational Court, which treats the Convention as a “living instrument” and constantly expands the definition of rights far beyond their original meaning? Do we do so knowing it renders governments unable to remove illegal immigrants and foreign criminals, even when we have secured guarantees of their safe treatment?

Or do we free our Parliament to make law, our government to deliver what we demand of it, and our courts to rule in cases without reference to a foreign entity that changes and makes laws without accountability?

Those who remain on the side of the ECHR mutter darkly about Britain becoming like Russia, but they cannot answer why liberal democracies like Australia and Canada have not needed a supranational court to avoid sliding towards autocracy. The problem is, especially after Brexit, that it is for many a matter of almost religious faith that international institutions are superior to their national, democratic alternatives. Yet this is utter nonsense.

The fallibility of leaders applies to international as well as national bodies, but the ability to learn from mistakes and make changes in regional and global fora is limited by the difficulty in reaching agreement on almost anything.

This difficulty to get things agreed and done is explained by the vast differences between democracies, autocracies and theocracies, differences in constitutional and institutional systems, and differences of values, interests and agendas between countries. As the European Union shows, institutional arrangements that seek to get around these problems carry an impossible democratic deficit. Without a single coherent political identity – a demos – there can be no real democracy and no legitimate mediation between clashing values and interests.

And international institutions carry all the compromises, dirty deals and hypocrisies of international affairs. The EU – which presented itself as so high-minded in Northern Ireland – breaches international law all the time. The China-influenced World Health Organisation failed completely during the pandemic. At the behest of South Africa, that bastion of good government and human rights, the International Court of Justice has begun proceedings against Israel for genocide. But it is Israel’s enemies who boast of their genocidal objectives.

While there is always a need for national governments to cooperate, share information and coordinate action, the problems with international and supranational governance and law are obvious and undeniable. In the case of the ECHR, we cannot let it override democratic government – nor the urgent need to protect the public and defend our borders.

A ruling by Strasbourg that Rwanda is not generally safe would create a crisis