The events that kick off Thucydides’ history of the outbreak of the Peloponnesian War might seem strikingly familiar to a modern reader. After inconclusive opening skirmishes over a distant territorial dispute between Corinth and Corcyra (modern Corfu), both sides come to Athens, one of the two superpowers of the Greek world, to plead their case. The Corcyrans want Athenian aid in resisting their more powerful mother city of Corinth; the Corinthians want the Athenians to stay out of it.
What’s striking is how much of the debate recorded by Thucydides uses the language of what we would now consider international law: treaty obligations, even something approaching customary law in the obligations owed by colonies to their founding cities, the Corcyrans’ offer to resolve the dispute by third-party arbitration. But equally striking is that in Thucydides’ narrative, little of this amounts to more than a cover. Both sides’ ultimate appeal is to the raw self-interest of the Athenians, under the cloud of growing tensions with Sparta.
Classical Greece (and the later Hellenistic and Roman periods) was anarchic, in the sense used in international relations theory: each state was fundamentally governed by its own interests. But that very anarchy was tempered, if to a limited degree, by customs — the preservation of the Olympic truce, the principle that treaties should be kept to, some degree of protection for sacred sites, and some mercy for non-combatants — that are not dissimilar to modern international law. No Greek state would have sacrificed its vital interests for these principles, all of which were, to some degree or another, breached over the course of the Peloponnesian War. But even two millennia removed we can see the outlines of a system that must have oiled the wheels of state interaction and regulated the petty, minor disputes that might otherwise consume officials’ time or flare up out of all proportion to the offence.
In this basic state of affairs, there is a lesson that can be lost in the overwhelming complexity of modern public international law: that there are two fundamentally important roles for international law. First, it provides a framework for the day-to-day running of the international system. If there were no settled rules over the treatment of diplomats, and every issue arising from consular relations had to be conducted from first principles, if every matter of international trade had to be negotiated from scratch, if there were no accepted principles of maritime navigation, diplomatic departments the world over would buckle under the workload. Pointless spats would become major crises on a regular basis. Some of this is specified in treaties, some just the result of established custom, but without basic rules to govern the little things, the thousands of ways that states interact with each other every day would become completely unmanageable. For the most part, these interactions are so minor and uncontroversial that the rules that govern them can safely be treated as binding.
The second, more sweeping, role for public international law is to set down clear expectations about what the behaviour of states ought to be. Thus states should keep to their treaties, they shouldn’t start unjustified wars of aggression, they should look to spare civilians where possible in war, and so on. That, by treaty or general custom of the international community, these sorts of principles exist gives a strong steer to states that might be tempted to breach them, and provides diplomatic cover to other members of the community in punishing any breaches. The very fact that there are principles broadly agreed in the international community does not, however, mean that it will always be possible to resolve a dispute by following the principles over hard-edged interests and the balance of power. In a system without any true enforcement, it’s somewhere between naïve and wilfully stupid to think that states will sacrifice their vital interests in the name of abstract ideals.
Except, of course, for Britain. And it’s here that the real problem with the Government’s approach to the dispute over the Chagos Islands comes into focus — it seems determined to collapse any distinction between a useful system of rules governing day-to-day interactions and what Britain’s vital interests are. Instead, we’re stuck with an establishment that seems obsessed with the idea that the grubby business of national self-interest can be determined by dusty submissions and dry legal clarity, even as the rest of the world becomes ever more confused and chaotic. It seems to believe that questions of national sovereignty can be as dependent on arcane rules as the finer points of taxation treaties.
And the answer, of course, is that they can — but only one way. No other country is going to follow suit. We can provide a beautiful role model for the rest of the world in our determination to adhere to every bit of the spirit and letter of international law, but it’s farcical to think that anyone else will do the same. Yet this attitude — if only we follow the rules one more time, everyone else will realise how wonderful they are — has hamstrung British policy for decades now. Our conviction that the ongoing dispute over Chagos was what was preventing Russia from realising the error of its conquering ways in Ukraine, or China abandoning its nine-dash line, is of the same artless innocence as our insistence on not only following, but gold-plating to the hilt, every new EU directive during our membership, even while other EU members smirkingly ignored the inconvenient aspects. The unworldliness of our governing class would be comical were it not such a betrayal of our interests.
There is only one way that this can go. So long as the UK holds itself open as an enthusiastic victim, those countries that do still know how to weigh their national interests will pounce. £101 million a year to Mauritius for the privilege of allowing us to surrender territory to them. How much will we one day give Spain for Gibraltar? Will we be paying for Argentinian drilling equipment as the price for surrendering the Falklands? No wonder we were so comprehensively out-negotiated by the EU over Brexit, and no wonder we’ve so meekly fallen in with the current US administration’s chaotic vision for the world.
Perhaps this is all according to plan, part of our rulers’ grand scheme to make Britain the first truly post-national state, a herald of the new world order where law and lawyers rule supreme. But if that’s so, then they’re missing the most essential part of the picture, that voters won’t tolerate such wilful disregard for British interests indefinitely. If Brexit was the canary in the coalmine of rising anger at high-handed interference by abstruse international bodies, it’s not a warning that has been given any heed. The Chagos deal itself may not — yet — have achieved widespread cut-through, but whether it’s opposition to the ECHR, or increasing backlash against trade deals, there’s a steadily growing current of deep suspicion towards international law in general. It’s become increasingly fashionable, in parts of the online right, to deny the very existence of international law. With Reform consistently leading in the polls, how long is it before the UK has a government consciously committed to repudiating the rules-based system in principle? Nor, of course, is the UK alone in this. The US is, if anything, ahead of us, and much of Europe not far behind (even if popular anger there may have been tempered in part by the wry disregard many European nations have long shown for the more restrictive elements of the international legal system).
There’s a sense in which this is a tremendous problem. For all the pomp and imperial overreach of modern international law, it does serve a purpose. The West – including the UK – has done extremely well over the last century out of a system that it broadly designed to serve its own interests. To the extent that the rules-based international system collapses completely, we are immensely vulnerable as a medium-sized power dependent on free-flowing global trade. It’s hardly in our national interest to return to that kind of Thucydidean interstate anarchy that would require us to expend real resources not on ever-expanding welfare, but on guns and ships.
But when we reach that point — as looks increasingly likely — it will be that imperial overreach of the worshippers of international law that will have been the cause. Far from leading to some kind of Fukuyama-esque internationalist utopia, the hubris of Starmer and his ilk can only undermine democratic consent for those bits of the liberal international order that do work. Once democratic support for, and trust in, the basic principle that resolving disputes through rules is gone, it will be difficult to regain. Modern populism is characterised by its deep suspicion of any kind of international cooperation beyond raw power plays. We risk training a generation of future political leaders to have an inbuilt hostility to international law, even where it might in fact serve our interests.
There’s still time to fix this. A sensible government could pull us out of treaties that do nothing but tie our hands — the Aarhus Convention, the Ottawa Treaty, the Convention on Cluster Munitions — and take a hard-headed look at whether others, like the ECHR, are worth the constraints they place on us. A sensible government could rip up the Chagos deal even at this eleventh hour. Indeed, a sensible Parliament could and should vote it down. Despite the Government’s attempts to avoid scrutiny by concluding the deal just before recess, it has committed to implementing the treaty through primary legislation, and is required in any case to lay treaties before Parliament pre-ratification under the Constitutional Reform and Governance Act 2010.
There’s no real prospect, though, that this government will do any of that. Its key members have been forged in a world of grandly benign public law, and seem genuinely incapable of understanding why people might actually care for their nation. Given Labour’s vast majority, there is likewise little hope of MPs exercising even their limited powers of scrutiny to block the deal. This is a governing class that takes pride in a self-flagellating attempt at well-meaning atonement for (real or imagined) historical sins. A change of heart is sadly beyond the realm of the likely, or even perhaps possible. By the time we get a government prepared to stand up for British interests, it may be too late to salvage those parts of the system that actually work. The result won’t just be the collapse of everything Starmer and Hermer have dedicated their lives to — it will be a narrower and more suspicious world for all of us.
“By the time we get a government prepared to stand up for British interests, it may be too late to salvage those parts of the system that actually work.”
Thucydides’ History is, as much as anything else, the story of how even the limited constraints of custom and diplomacy were ever more swept aside in favour of ruthless self-interest under the pressures of war. Less than 20 years after the civilised arguments of the Corinthians and Corcyrans, Thucydides records another debate at Athens over the fate of Melos, a rebelling member of Athens’ empire. The Melians appeal to the Athenians’ better nature; they are unsuccessful. In perhaps the bleakest statement of Thucydides’ worldview, the Athenians justify their decision to slaughter the Melians with the famous “δίκαια μὲν ἐν τῷ ἀνθρωπείῳ λόγῳ ἀπὸ τῆς ἴσης ἀνάγκης κρίνεται, δυνατὰ δὲ οἱ προύχοντες πράσσουσι καὶ οἱ ἀσθενεῖς ξυγχωροῦσιν”: “Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.” The Government will regret its role in bringing back this predatory world.
