Today, voters in the UK are voting in what promises to be a fascinating general election. It is, however, of particular interest to those of us with an interest in public international law, for we find ourself in the unique situation in which our chosen discipline is a central issue, perhaps the central issue, in the mind of the electorate as they cast their votes. The recent, timeous leak of Lord Goldsmith's advice on the legality of war in Iraq has, of course, pushed it to the forefront; however, the is every reason to suspect that it would have been a dominant issue this notwithstanding.
In the minds of the British public (and correctly so in my view), Blair took us into an illegal war. The technical point (which I have discussed here), that he had advice from his advocate general that, given prior UK practice, our international legal obligations would be discharged if the case for war was "reasonably arguable" seems both dubious and somehow irrelevant in this regard; Blair's legal arguments are certainly, at best, shaky - and the public knows this. Has international law ever featured so prominently in an election campaign?
It may be argued that, according to the polls, Blair will still win, and win quite comfortably (although the latest suggest that enough are still undecided to make the result closer than many are predicting). However, to infer from this that the international legality of the Iraq war is a non-issue would be simply wrong. Such a reduction ignores both the complexities of this particular campaign, and the pathologies of the UK electoral system more generally. The first question may be - if Iraq is such a big deal, why haven't voters switched to the Tories? The answer is quite simply that the Tories were very vocal in their support for the war, and left few in any doubt that they would have acted in almost exactly the same way given the chance. Howard's recent attempts to recapture the anti-war vote, by accusing Blair of lying (an unusual tactic, even in an election campaign) has come accross more as cynical opportunism than principled politics. It should, of course, also be borne in mind that, in general, those who opposed the war were on the left of the political spectrum, and are unlikely to vote Tory in any event.
So why, then, have the Liberal Democrats, who have positioned themselves to the left of New Labour generally and who were the only major UK party to actively oppose the war (and always did so on the grounds of its illegality, rather than immorality) not seen the surge in the polls that one may expect if voters really care about Iraq? The answer lies in the pathologies of the UK system, which, as in the US, strongly favours an essentially two-party setup. The Liberal Democrats have never even been near power; and voters do not see them as a genuinely viable alternative for government. They will, of course, benefit from a protest vote, but these are always significantly less at general than at local or by-elections. Proof of this, if proof be needed, is furnished by Labour's campaign strategy of late: the latest posters, for example, proclaim 3 ways to get a Tory government: Stay at home, vote Tory, or vote Lib Dem.
Furthermore, even if Labour (and this is by no means certain) do not suffer overly at the ballot box, there can be no bdoubt that Blair himself has. The levels of trust placed in him by the electorate has plummetted, with polls now suggesting that, had Gordon Brown been leading the party into the election, another Labour landslide would be on the cards. The implication is clear: Blair, for the first time in his career, is a political liability; he is damaged goods.
Public international law, then, is, perhaps for the first time, at the absolute heart of a general election at the UK, and will have a serious impact, if not on who forms the next Government, then certainly on both the size of his majority and the length of time he will remain at the head. And this, perhaps, points to one of the strengths of international law that few of its critics recognise: it provides an (admittedly imperfect and indeterminate) focal point around which actors of many diverse views and with many divers projects can rally in critique of and opposition to the actions of the powerful. There seems little doubt that, without such a standard, domestic opposition to the Iraq War would quickly have fragmented and dissipated. This point holds both at the global level, among states and other international actors, and, in democracies at least, at the domestic level. International law, therefore, can, and does, play an important role in holding leaders to account - as Blair may yet find out to his cost.