The case brought by South Africa against Israel in the International Court of Justice (ICJ) is a reminder of the dangers for countries of surrendering national sovereignty to international bodies.

The South African case alleges genocide on the part of Israel in the attacks on Hamas in Gaza and it is likely that the ICJ will uphold this case, given the antipathy to Israel in almost all but a small number of Western nations. The Israelis would, of course, have to ignore such a ruling but it would provide further ammunition for their opponents around the world in a propaganda war that has been conducted against them for many years in all countries, including those in the West which provide them with some support.

All this would be a source of satisfaction to the politically correct class in Australia who have long held the view that the Australian government should be subject to the directions of international bodies, particularly the United Nations and its agencies. This has especially been the case in relation to Australia’s policies concerning illegal immigration where it is constantly said that these policies are contrary to international law.

As it happens, national sovereignty was the whole point of Brexit, that is, whether final decisions about life in the UK were to be made by the Westminster parliament in London or by bureaucrats in Brussels. But, despite Britain leaving the European Union, it has not so far reclaimed all aspects of its national sovereignty.

This was sharply illustrated by the decision of the UK Supreme Court in November last year when it declared invalid the government’s proposal for some asylum seekers who had entered the UK to have their claims considered in Rwanda and, if those claims were successful, any asylum would be granted for residence in Rwanda. There can certainly be an argument as to the merits of this proposal, particularly as to whether it would work in practice, but it was a decision of the British government. The UK Supreme Court held, however, that it contravened domestic legislation that gave effect to the European Convention on Human Rights. Earlier in 2022 the government’s proposal had been the subject of a restraining order by the European Court of Human Rights in Strasbourg. Again, despite having left the EU, the UK remains subject to the jurisdiction of this foreign court because of its membership of the Council of Europe which is a separate entity from the EU.

When Suella Braverman was removed as Home Secretary by Prime Minister Sunak in November of last year, she complained that one of the bases on which she had taken office was that Sunak had agreed to end these international constraints on British attempts to deal with illegal immigration but had reneged on this agreement. Her point was that it was not possible to address the problem in the first place if the government’s policies in this area could be the subject of constant challenge in the courts on the basis of the European convention and even judgments of a foreign court in Strasbourg.

The administration in Westminster has introduced legislation to try to overcome the decision of the Supreme Court but it remains to be seen how this will fare politically in the parliament. It is important to note, however, that it is always a legal option for the UK parliament to remove these foreign obstacles to its proposals if it has the will to do so. The UK is not a federation like Australia and the US so it does not have or need a written constitution. If it does remove those obstacles with enough clarity, the courts have no alternative but to accept the effect of the legislation. This is because legislation cannot be struck down on constitutional grounds in a way that the Australian High Court or the US Supreme Court can – and does – on occasions.

If, however, as expected, a Labour administration replaces the current Conservative government in the immediate future, it can be assumed that the role of international bodies and the courts in limiting government actions will not be diminished but only increased. There may even be an attempt to reverse Brexit and, even if this is not done formally, it is almost certain that a Labour government will restore some of the control over British decision-making that Brussels exercised prior to the UK’s withdrawal from the EU.

The rationale for the Rwandan proposal lay in the fact that in 2022 almost 40,000 unauthorised immigrants crossed the English Channel from France in small boats and then claimed asylum in the UK. The processing of these kinds of claims, especially when a rejection is contested in tribunals and courts, may well take many years and the reality is that once an immigrant has gained entry to the UK there is almost no prospect of their being deported at some later stage.

A very similar situation prevails in Australia where some claims for asylum have been litigated for up to ten years in the Federal Court. Unlike in the case of the UK, most of those claiming asylum in Australia do not arrive by boat but by air. The basis for asylum claims is that the claimant faces a genuine prospect of persecution in their home country by reason of race, religion, nationality, membership of a particular social group, or political opinion. It might, however, seem an unlikely proposition that someone who is in possession of a passport from their home country and has been able to purchase an international airline ticket there is the subject of persecution by the authorities who allowed the passport to be issued and the airline ticket to be purchased.

As already noted, Australia’s largely ineffective efforts in this area have still been the subject of constant criticism that they are contrary to international law. As in Britain, there is a politically correct class that prefers the rule of external organisations and foreign law to that of a democratically elected government on home soil.