UK plans to break International Law
In recent months, Brexit has taken a backseat in most people’s minds. Whilst the saga dominated political, legal and economic news after the decision to leave the European Union (EU) in June 2016, the matter has more recently played second fiddle to the government’s response to the COVID-19 pandemic. Yet, Brexit has once again come to the fore as a contentious issue in the lead up to the official end of the UK’s transition period at the end of December, as stipulated by the Brexit Withdrawal Agreement settled in November 2018.
The most recent cause for renewed concern within Westminster and further afield in Belfast and Brussels is the proposed Internal Market Bill, which is currently making its way through the Lords. In a nutshell, certain measures within the bill are set to clash with the Northern Ireland Protocol. The Protocol was settled upon as a viable solution to the Irish Backstop problem, which dominated much of Theresa May’s negotiations with the EU during her tenure.
As the Withdrawal Agreement currently stands, the Northern Ireland Protocol would facilitate a continued Northern Irish membership of the EU’s single market beyond the transition period. The main aim of such an arrangement is to avoid reinforcing a ‘hard’ border between Northern Ireland and the rest of the Republic. The Protocol would maintain the unrestricted route between Northern Ireland and the rest of the UK, but introduce the requirement of customs declarations for goods. The aim of the Internal Market Bill would be to grant ministers in the UK certain unilateral powers, such as the ability to waive the requirement of the customs paperwork - unsurprisingly a controversial move.
Both parties are still negotiating the embellishments on the future arrangement between the UK and the EU’s single market and customs union; the bill would come into play in the instance that a trade arrangement fails to come to fruition by the end of the transition period and we fall back on WTO rules. Senior officials in Westminster worry that its passage would complicate and even jeopardise future international relations between the three parties involved. A further problem is that the measure would directly undermine the Withdrawal Agreement, which stipulated that the provisions of the treaty were to take legal precedence over the UK’s domestic law.
While the bill has been passed by the Commons to become part of the Withdrawal Agreement, and therefore international law, it was an unpopular proposal amongst many Conservative backbenchers as well as the Democratic Unionist Party (DUP). Northern Ireland Secretary Brandon Lewis’ statement that the bill “does break international law in a very specific and limited way” only added fuel to the fire, eliciting incredulous reactions from incumbent cabinet secretaries and former party leaders alike. A palpable general sentiment is that such a move would damage the UK’s already compromised international reputation. Former Conservative leader Lord William Hague expressed concern that this would be “a serious foreign policy error”, citing the threat of a diminished ability to exert international influence and protect our interests abroad.
“Brexit has once again come to the fore as a contentious
issue in the lead up to the official end of the UK’s transition period at the end of December, as stipulated by the Brexit Withdrawal Agreement settled in November 2018.”
If the Brexit negotiation process is anything to go by, talks between the UK and the EU are never exempt from being stalled or self-sabotaged by excessive demands and an inability to reach a compromise. With the biggest Conservative majority since Margaret Thatcher in 1987, it was inevitable that Boris Johnson’s Internal Market Bill was going to clear its first hurdle in the commons - but the EU has issued a three-week ultimatum before it launches legal action in response. Hence, it is clear that the move has compromised progress towards a more cordial relationship between the two sides.
The tensions between this bill and the Northern Ireland Protocol are two-fold.
Firstly, the Northern Ireland Protocol is part of the Withdrawal Agreement. Altering the Withdrawal Agreement would not only breach international law, but would also threaten non-cooperation from the EU by unilaterally introducing a dramatic development.
On the other hand, the concept of international law is a nebulous one. A prevailing issue with international law is the lack of codification; much of it is built on a foundation of treaties and tradition. While domestic law either functions in accordance with a codified constitution or a system of case law precedent, a lot of international law is customary. It operates largely through consent, as the sovereignty of individual states supersedes the ability of one universal body to enforce these customs. This is why the government’s statement on the “limited and specific way” in which this bill would break international law is controversial but conceivable.
Secondly, at a time when the UK should be cautious of making enemies, the underhanded introduction of the Internal Market Bill may have already begun to damage the ability of other nations to trust the UK’s sincerity.
The campaign to leave the EU was sold to the British electorate as an opportunity to ‘take back control’ - a nod to the increasing influence that European courts have had on domestic law since the UK became a member of the EU. The central courts of the EU come closest to imitating something of a centralised judiciary, but the UK’s decision to exit this club evidences our desire to be free from such scrutiny. The real sacrifice here is the damage that would be caused by such a blatant disregard of international custom - the damage to reputation. Irish Premier Micheál Martin was quick to call for parts of the bill to be withdrawn, citing his concerns that the measure “essentially nullifies and undermines what is an international treaty”. This criticism did not find itself in isolation, chiming in alongside many other critics including the European Commission, who confirmed that the bill is a “clear breach” of the Brexit Treaty. U.S. House of Representatives Speaker Nancy Pelosi also warned of damaged prospects of a trade agreement with the U.S., while nationalists in Scotland have hinted at a fresh wave of calls for Scottish independence.
Throughout its membership of the EU, the UK prided itself on championing a strict adherence to the rule of law. Where other countries (such as Hungary) regularly derogated from and opted-out of EU directives with little to no real consequence, the UK unwaveringly upheld the rule of law. While a testament to the UK’s iron-fisted justice system, perhaps a more teleological interpretation of the EU's instructions could have prevented the growing sentiment of a loss of sovereignty. It now ironically seems that our chosen approach has held us back from moulding directives issued by the EU to suit our needs as a country. As a result, we have essentially played a central role in curbing our own sovereignty. Though Brexit has been a significant stride in attempting to disentangle ourselves from this arrangement, we have compromised our position within the framework of international law.
The UK cannot afford to disoblige the very bodies it may very well depend on for business in the future. Even if we fail to reach an agreement with the EU by December, the UK must tread carefully to preserve reputation, in case we find ourselves in the wilderness of the WTO in the new year.