Oliver Cooper advises on international law for a City law firm and is Leader of the Conservatives on Three Rivers District Council.

PMQs is rarely an educational experience.  But last week saw an illuminating lesson in the nature of international law – and why it should sit way down the Government’s priorities.

That lesson comes, of all people, from Ed Davey.  No, I haven’t completely lost my marbles. Like most lessons learned from the Lib Dems, his is one in hypocrisy.

I wrote before the election that every country breaks international law. That its nature is to be subordinate to the national interest. And that Lib Dems’ and Labour’s criticism of Conservatives breaking it to protect our borders is hypocritical: naming a list of ways their policies would break international law for far less worthy goals. At PMQs, Ed Davey added another to that list.

Davey called for a “Tesla tariff”, specifically targeting Tesla to spite Elon Musk.  So-called liberals demanding a trade war would have William Gladstone rolling in his grave (or as Margaret Thatcher said, applying to join the Conservative Party).

As it happens, the U.S. sells almost no electric cars to the UK, accounting for just one per cent of the UK’s electric car imports.  So it’s a bit of a pointless gesture.

But it’s also a gesture that would unambiguously break international law. Specifically, it would most clearly break Articles I(1), II(1)(a), and II(1)(b) of the General Agreement on Tariffs and Trade (GATT): the founding document of the WTO.

Those provisions require countries to afford Most Favoured Nation treatment and refrain from imposing discriminatory or escalating tariffs on another country.

Clearly, despite that, retaliatory tariffs exist. They’re almost always illegal under international law.  Countries usually try to couch them in terms of the exceptions within the treaty, but those are usually convenient lies trying to cover for the twin evils of protectionism and politicians’ egos.

Countries that do tell that lie – including the UK in 2021 – often concoct a legal fiction that they’re emergency measures to prevent the market being flooded.  That’s a safeguard allowed under GATT Article XIX, but one rarely used in good faith.

Countries will name politically sensitive industries in the target country and pretend that those precise products conveniently happen to be flooding their market.  Take American orange growers, who have long been hit by tariffs because Florida has (until recently) been a swing state.

But Davey hasn’t claimed that. Like his fellow clown Krusty, he’s said the quiet part loud by admitting it’s a political measure, specifically targeting Tesla because of Musk. That is nakedly a breach of the main principle of international trade law.

I’m on the side of the spectre of a betrayed Gladstone. It’s an utterly insane idea.  But the Lib Dems think that trade wars are great, and despite claiming that international law is sacrosanct, they’re happy to break international law to achieve their political objectives.

There’s nothing wrong with that.  All countries do break international law, and the UK is right to do so from time to time.  Notwithstanding how mind-numbingly dumb and infantile this particular measure is, I’m glad the Lib Dems concede that principle so freely.

Which allows us to cross the aisle to Keir Starmer.  His utterly hapless Attorney General Lord Hermer has denied Labour would ever breach international law, saying, “We will go further than simply meeting our obligations under international law generally – that we will do so should go without saying.”

He further said that the Government would “never refuse to comply with judgments of the [European Court of Human Rights].”

So the key question to Starmer on immigration is the one that Kemi Badenoch asked with her third question at PMQs: would he breach the ECHR if that is necessary to prevent a repeat of the absurd judgment allowing Gazans into the UK under the Ukraine scheme?

Starmer didn’t precisely say that he would, but he implied it, saying, “She asked me again in question three, it’s still yes.”

If that’s true, I’m delighted to hear it. Bluntly: many breaches of the ECHR will likely be necessary to fix our borders. The Government can’t shy from that or take Lord Hermer’s view that it is unacceptable.

The Conservatives were willing to diverge from the ECHR with the Illegal Migration Act 2023 and the Safety of Rwanda Act 2024, and Labour should be willing to do it now.

But it wasn’t clear from Starmer.  Without further pressing, Starmer might claim to his own side that hasn’t made such a commitment.  Especially as saying so expressly makes Lord Hermer’s position untenable and would surely require him to resign as Attorney General: something the PM seems to be the only person to oppose.

More interestingly, if Starmer does repeat that concession: why then, does he stand by the other – variously insane and inane –  positions he’s justified by slavish adherence to international law?

Why sign over Chagos due to a mere ICJ Advisory Opinion, which by definition can’t bind the UK?

Why cite the UN Convention on the Rights of the Child as a reason not to give murderers like Axel Rudakubana whole life sentences?

Why repeal the Legacy Act that helped Northern Ireland move on from the Troubles just because it’s contrary to the ECHR?

If Starmer has – rightly – admitted that we should breach the ECHR if necessary to control our borders, those are the questions he needs to answer next.

But if it thinks securing our borders isn’t worth breaching the ECHR, the Government will be persisting with a fundamental misunderstanding of the fact that international law must bow down before the national interest – as proven by, of all people, Davey.

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