Today’s document from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) is a letter dated November 4 1956 to the Lord Chancellor Lord Kilmuir, from Lord McNair.
Lord McNair was a professor of law at Cambridge. He had served as President of the International Court of Justice until the previous year, and so was obviously one of the leading international lawyers of the day. He went on to be President of the European Court of Human Rights from 1959.
McNair had spoken in the House of Lords in September, making clear his view that Egypt’s nationalisation of the Suez canal would not justify force, having regard to the Kellogg-Briand Pact and the UN Charter. What’s striking about that speech is that not only makes the case repeated later by the Attorney General (who doubtless knew of and was influenced by McNair’s view) but that McNair dismisses Sir Austen Chamberlain’s “British Monroe Doctrine”— a doctrine Lord Kilmuir later seize on in the legal argument he made.
Lord McNair could not know what Kilmuir was telling his ministerial colleagues, of course. What he did know was what Kilmuir had said in the House of Lords a few days before, and what the Prime Minister had said on TV the previous evening.
I can find no authority
McNair writes (para. 1),
for the view that when two States are engaged in fighting and their hostilities may cause injury to the nationals or the property of a neutral State, the Neutral State has a right to intervene by armed force.
As far as the UN is concerned (para. 4)
So far from seeking authority for our armed intervention, we presented the United Nations with a fait accompli, and we concealed our intentions from them
McNair dismisses Kilmuir’s reliance on the Caroline incident (para. 5) before writing
I come now to what you appear to regard as the main justification of our intervention, namely, self-defence. I consider that you adopt an unduly wide conception of this term …
Ultimately, McNair writes,
My general conclusion is that our intervention is illegal.
Politely phrased though it is, this letter reads, as no doubt it was intended, as a slap-down by an eminent international lawyer of arguments he clearly saw as both weak and self-serving.
McNair didn’t say he was copying his letter to the Attorney General; I don’t know how a copy found its way into the Attorney’s file.