Carl Schmitt, International Law, and Constitutional Tradition in the United Kingdom

We live in a time when international law seems  “to be called into question more fundamentally than before” (Georg Nolte, p. 230). The debates to which this situation gives rise concern the rule of law and the attendant compliance by Governments with international law. The previous United Kingdom Government openly admitted that it was prepared to “break international law” in what it called a “limited way”. The current Government takes a different view.

This is evident from an important speech — the Annual Security Lecture at the defence and security think tank the Royal United Services Institute — which was given this year by the Government’s chief legal adviser and Minister attending Cabinet, the Attorney General for England and Wales, Lord Hermer KC. The event received a great deal of attention. In this speech, which touched powerfully on a range of topics, from the murder of Jews during the Second World War to the murder of civilians by Russian forces in Ukraine, the Attorney General set out the vision of a government that refuses to call international law into question. Lord Hermer, who is himself Jewish, was a practising barrister in the fields of international and human rights law before becoming Attorney General. He forcefully set out his defence of the Government’s commitment to international law and compared those who want to ignore international law — those who advocate abandoning the constraints of international law in favour of raw power — to Carl Schmitt, the “German conservative jurist and political theorist, best known for his critique of liberalism, his definition of politics as based on the distinction between friends and enemies, and his overt support of Nazism” (Encyclopædia Britannica). Lord Hermer said that the claim that international law could

“be put aside when conditions change, is a claim that was made in the early 1930s by ‘realist’ jurists in Germany most notably Carl Schmitt, whose central thesis was in essence the claim that state power is all that counts, not law.”

In this context, he also made the important point that, according to the constitutional tradition of the United Kingdom, “ministers are under a duty to comply with international law.”

The speech did not give universal satisfaction. Lord Hermer felt obliged, shortly after having made it, to apologize for making a  “clumsy” comparison when he compared with Carl Schmitt those who argue that international law can be set aside.

One critical comment on the speech, described as an “astute take-down”, has garnered particular attention: an article by Professor Richard Ekins KC, a Professor at  Oxford University and Head of the Judicial Power Project at the think tank  Policy Exchange, which bears the title “Lord Hermer is preposterously wrong about international law”. It is unlikely that the Attorney General will have lost much sleep over Professor Ekins’ criticism that he is no less than “preposterously wrong”. Nevertheless, the position set out by Ekins, who has been recognized as having made a major contribution to the law of England and Wales, merits attention as he is the author of books and articles on constitutional questions which in the United Kingdom have been highly influential both politically and academically.

Among the main allegations Professor Ekins makes are, first, that Lord Hermer “plays the Schmitt card” — which is to invoke Carl Schmitt in order “to smear … opponents without evidence or argument” — and, second, that Lord Hermer’s understanding of international law in the context of the British constitution is “incompatible with our political history and constitutional tradition”. We argue that the criticism of Lord Hermer’s evocation of Carl Schmitt is unjustified, and that the Attorney General’s broader analysis is in conformity with the best view of the constitutional position.

Lord Hermer “Plays the Schmitt Card”?

As to the first point, it needs to be said that Carl Schmitt is much in vogue. Schmitt’s work is particularly popular on the right, it is true; but the popularity of his analyses goes well beyond any right-wing fringe. A prominent academic advocate of a Schmittian approach to legal questions is Harvard Law School’s Professor Adrian Vermeule (e.g. “Our Schmittian Administrative Law” (2009), vol. 122, Harvard Law Review, p. 1095 and Law-Skepticism on the New Right). In American political discourse, it is not considered clumsy to draw comparisons with Carl Schmitt on ideological grounds, as J. D. Vance did in 2024 (R. Douthat, “What J.D. Vance believes”, New York Times, 13 June 2024). Vermeule and Vance rely on Schmitt in their argument to strengthen the executive in general and its emergency powers.

In the United Kingdom, leading Supreme Court Justices refer to Schmitt, without any denigration, in their analyses of constitutional principle (see Lord Sales’ Clarendon Lectures at Oxford University earlier this year); he is discussed on prominent BBC radio programmes; and leading universities, not least Ekins’ own, teach his writings. An internet search for “left Schmittians” brings up Schmitt’s Social Democrat pupil and Justice of the German Federal Constitutional Court, Böckenförde, as well as certain Italian Marxists and international lawyers of the Global South. Whether one likes it or not, so salonfähig are references to Schmitt considered today that it seems disingenuous to claim, in the manner Professor Ekins does, that Lord Hermer “plays the Schmitt card”. At the same time, we believe that Lord Hermer intended to point out the danger in relying on the tradition of the anti-liberal and anti-democratic Schmitt, as in particular Professor David Dyzenhaus has explained in his writings from the 1990s until the present day.

Is Lord Hermer’s Understanding of International Law “Incompatible with Our Political History and Constitutional Tradition”?

As to the second point, Ekins makes the statement that “Lord Hermer’s approach to international law is incompatible with our political history and constitutional tradition”. We say nothing in this regard of Ekins’ particular choice of words — including the possessive determiner “our” — and whether or not it is well-advised in the context of Lord Hermer’s speech. Ekins makes the allegation that “Lord Hermer’s approach to international law is unconstitutional” and sets out his own view that Lord Hermer’s “attempt to assert that ministers (and possibly civil servants) have a constitutional duty to comply with international law is flatly incompatible with our dualist legal order”. Different meanings are attached to “dualism” (as is also the case with “monism”). This makes it a difficult and uncertain concept by which to characterize any legal order, but Ekin’s argument is likely to be that international law requires some formal transposition into domestic law before Ministers and civil servants can be said to be bound by it.

It is worth pausing at this point to ask what the practical stakes of this debate are. The following example from British political history is instructive. Both under Article 3 of the European Convention on Human Rights (which until the Human Rights Act 1998 was not incorporated into UK law) and under the rules of general international law binding on States in all circumstances (Diallo (Guinea v. DRC), p. 671, para. 88), there is a “prohibition of inhuman and degrading treatment”. In the 1970s British Ministers decided, in the context of the Troubles in Northern Ireland, to use certain interrogation techniques (prolonged wall-standing, hooding, subjection to noise, and deprivation of sleep, food, and drink) on 14 men who had been arrested without trial (see Ireland v. United Kingdom, paras. 96–97). Those techniques were inconsistent with the prohibition of inhuman and degrading treatment. If Lord Hermer’s position is the correct one, then there was a constitutional duty on those Ministers (and the civil servants advising them) to comply with the prohibition in international law of inhuman and degrading treatment: if Professor Ekins is correct, there was no such constitutional duty.

As a matter of British constitutional principle and tradition, Lord Hermer’s position is correct. Ministers have, according to constitutional orthodoxy, a duty to comply with international law. The orthodox position was set forth in 2015 by Lord Faulks KC, Conservative Minister of State at the Ministry of Justice, when he told the House of Lords that “a member of the Executive, including a Minister such as myself, is obliged to follow international law”; this, he explained, was a function of Ministers’ “obligations under the rule of law” (Hansard 28 October 2015, HL Col. 1171).

That is why the Court of Appeal of England and Wales held, in Gulf Centre for Human Rights v. Prime Minister, that the duty of Ministers to comply with the law “includes international law and treaty obligations” (para. 22). This approach to international law — and to the rule of law — is identical to the one professed by Lord Hermer.

In fact, Professor Ekins has long cleaved to the view that Ministers do not have an obligation to comply with international law. As Sir Frank Berman KCMG KC, a former Legal Adviser in the Foreign Office, commented ten years ago, Ekins’ view (set out in an article he had then published) “fails to take into account that governments are comprised of individuals and act through those individuals” (The Ministerial Code and International Rule of Law, p. 4).

The reason ministers are bound by international law is precisely that they represent the State (see Sir Gerald Fitzmaurice KCMG KC, p. 74). More recently, Professor Campbell McLachlan KC set the position out in these terms:

“the duty of ministers and officials to comply with the international law obligations of the state is a consequence of the state’s duty to give effect to its obligations in good faith, but is given effect through a principle of the British Constitution that allocates this responsibility internally to the executive.” (“The Double-Facing Foreign Relations Function of the Executive and Its Self-Enforcing Obligation to Comply with International Law” in  The Double-Facing Constitution (CUP 2020), p. 403)

It is entirely to be welcomed that the Government of the United Kingdom stands up for international law. Attorney General Lord Hermer was correct to observe that, according to the constitutional tradition of the United Kingdom, Ministers are under a duty to comply with international law. It is Professor Ekins’ position, not Lord Hermer’s, that is wrong.

Conclusion

If the debate looks like a technical dispute at the level of constitutional detail, what is actually at stake are competing conceptions of the rule of law, which concerns civil servants as much as it concerns Ministers. In that broader context, Lord Hermer’s speech is of a piece with the Government’s position that the rule of law “requires compliance by the state with its obligations in international law as in national law” (Attorney General’s Legal Risk Guidance (2024), para. 9). This conception of the rule of law seems to hew closely to the vision set out by Lord Bingham, who in The Rule of Law explained that a state of affairs deserving of that description “requires compliance by the state with its obligations in international law as in national law” ((Penguin 2010), p. 131; see for criticism the view of Lord Verdirame KC, para. 23). As explained above, this conception of the rule of law means that Ministers and those who advise them must comply with international law. It also means that members of the legislative branch of government who legislate to “break international law”, whether in a “limited way” or otherwise, would be in breach of the precepts of the rule of law. For judges, however, the position is different since, as Mr. Justice Chamberlain observed in FDA v. Cabinet Office, “[o]n one view, compliance with international law is an aspect of the rule of law, albeit one which falls outside the purview of the domestic courts: see e.g. Bingham, The Rule of Law (2010), pp. 110–111” (para. 77; emphasis added).

An important concomitant of this conception of the rule of law is that actions which have little or no chance of being tested before a court — often the case in international law — “should be scrutinised very carefully by government lawyers” (Attorney General’s Legal Risk Guidance (2024), para. 9), para. 13(b)). That coheres with the point of principle, made by Sir Frank Berman KCMG KC and Sir Michael Wood KCMG KC, that the fact that there is not in international law any court of general jurisdiction before which the actions of governments can be challenged “places a special responsibility on those tasked with advising the Government in this field” (para. 4). This seems all the more important at a time when, in several quarters, international law is called into question more fundamentally than before.

The authors would like to thank the anonymous reviewer, Miri Bennun, Anja Bossow, Professor Paul Craig KC, Professor David Dyzenhaus, Professor Lawrence Hill-Cawthorne, Professor Phoebe Okowa, and Sir Stephen Sedley for their comments on a draft of this article.