The UK Government (UKGOV) is putting before Parliament the Internal Market Bill (Bill) which is necessary to ensure no impediment to internal trade within the UK after 31 December 2020. The Bill however includes a proposal to give UK Ministers powers to ensure UKGOV controls the regulation of trade terms between Northern Ireland (NI) and Great Britain (GB), and control over UK state aid laws (New Powers). Surely one would expect a sovereign state to control such things?
BREAKING THE WITHDRAWAL AGREEMENT TERMS?
However, it is alleged that by taking these New Powers the UK will be breaking the Withdrawal Agreement, which was agreed in 2019 with the EU settling the terms of the UK’s departure from the EU, including the Northern Ireland Protocol (Protocol), which itself will apply if there is no trade agreement in place by the end of 2020. Ignoring a possible debate as to whether there will be a breach, to deliberately break an international agreement is undoubtedly a serious step to take, especially for a state as respected for its laws as the UK, and so it needs to be justifiable. It is unfortunate, unless it was a deliberate provocation, that Brandon Lewis, UKGOV minister, admitted there would be a specific and limited breach of international law. This has been picked up on by those whose ends it suits as a heinous and disgraceful action, not to be countenanced, preaching the sanctity of international law. That sanctity needs to be questioned. International treaties are hard to enforce in courts if a resistant nation is powerful enough, and it is hard for courts to force nations to comply with their orders. They depend a lot on trust and the fact that a treaty serves the parties’ interests overall, and, if it ceases to serve those interests, the treaty will inevitably end. The UK has perhaps a good reputation for honouring its treaties and international law and often berates others for not doing so – its reputation is probably somewhat better than most countries as well as the EU as a whole, and to damage that reputation could harm the UK in its dealings with others.
If the EU is itself acting in bad faith in the current trade negotiations with the UK or is ignoring its own commitments, then the UK acting to protect its sovereignty and interest and the integrity of the Union which is the UK, through adopting the New Powers, may well be appropriate, or at least not reprehensible, and the world generally will see through sanctimonious criticism.
IS INTERNATIONAL LAW SO HOLY OR MAYBE IT DEPENDS ON POWER?
Various newspapers point to the commonplace breaking of International laws. The United States via Donald Trump has repudiated the nuclear agreement with Iran, and other countries may do the same, alleging breach by Iran as justification. According to Ambrose Pritchard-Evans of the Daily Telegraph of 14 September the EU has systematically refused to comply with the judgements of the World Trade Organisation, flouting rulings such as about GMO crops, hormone beef and Airbus subsidies, as if compliance was optional. He describes the EU as a practised abuser of International law. Member States of the EU itself regularly ignore the EU Treaty when it suits, such as through breach of state aid rules, and the EU Commission failing to enforce rules against the powerful such as Germany. He says that “the EU picks and chooses when it will be bound by international law, like everybody else”.
Major powers such as Russia and China regularly ignore international law, as do a host of other countries. Hong Kong is a victim of China doing so. Politics and diplomacy and economics all influence the approach to an instance of application of international law, as in the case of any treaty does the behaviour of all the parties generally. For example, if the UK has a trade treaty with another country and that other country committed an act of war against the UK, the UK might feel it could reasonably break off from the trade treaty.
That International law is regularly broken by others without consequence does not however justify the UK doing so. But it puts such law in context.
The other context is that the UK leaving the EU, and the negotiations around that, has not proved to be a cooperative exercise between close allies: it is more of a street fight, not cricket or boxing under the Queensbury rules. The general behaviour of the EU and the UK is highly relevant, as is the background to UKGOV’s decision to propose the New Powers.
THE WITHDRAWAL AGREEMENT AND THE TRADE NEGOTIATIONS
Perhaps it is worth recalling that Michel Barnier has previously said that Northern Ireland has been used for strategic and tactical reasons in the negotiations, and no doubt will continue to be. Is it too cynical to suggest that perhaps the EU has little concern about the Good Friday Agreement?
The EU has made commitments, for example to recognise “Northern Ireland’s integral place in the United Kingdom’s internal market” (as in the Protocol); and “to use its best endeavours to facilitate the trade between Northern Ireland and all other parts of the United Kingdom…avoiding controls…if at all possible”. They committed in good faith to developing the necessary trade agreements to come into force by the end of 2020. They agreed that “Northern Ireland is part of the customs territory of the United Kingdom”. The EU had committed to a fisheries agreement by July 2020 but refuses to discuss it. They have failed in their declared intention to get agreement on financial regulation services by June 2020. Where for a long time repeatedly the EU negotiators had approved the idea of the UK having a Canada-style agreement on trade, inexplicably, they no longer do so.
The whole basis of understanding behind the Withdrawal Agreement was that there would be a trade deal, and the Political Declaration set out agreed principles – it is self-evident that the whole context of the negotiation depends on trust and good faith. The Withdrawal Agreement expressly provides that the sovereignty of the UK Parliament is not to be constrained by the Withdrawal Agreement.
UKGOV alleges bad faith by the EU in the trade negotiations, particularly that the EU is threatening to use the Protocol to control exports and especially food supplies from GB to NI. It would do so by what is described by UKGOV as an extreme and broad interpretation of the Protocol, possibly declaring all such exports as “at risk” of finding their way into the Republic of Ireland (there being no border checks between NI and the Republic, adhering to the Good Friday Agreement): it would seek to impose tariffs and checks and controls on all such exports, in effect creating a full border between NI and the UK, dividing the UK in two, described by UKGOV as a blockade. It is worth noting that in fact historically and currently, very few goods which go from GB to NI are destined for or end up in the Republic, and so how can the threat really be justified? Is making such a threat really using best endeavours to facilitate trade between NI and GB? This threat it is said will go away if the UK accedes to the demands of the EU in the trade negotiations. This threat, if true, perhaps illustrates to UKGOV and the British public that the EU is willing to abuse power and the spirit supposedly behind the trade negotiations to ensure its requirements to regulate the UK after 2020 are met. But such regulation is totally contrary to the integrity and sovereignty of the UK.
A further potential effect of the interpretation and threatened action could be the imposition, through the backdoor, of EU regulations on employment, state aid and other areas on the whole of the UK, as opposed simply to NI under the Protocol. This was always a risk, but not if negotiations on trade were conducted in good faith, and with the intentions set out in the Political Declaration, which sets out the approach that should be adopted to the trade negotiations. Again, this would perhaps be a denial of UK sovereignty over its own laws.
The UK is not and cannot be an angel in the street fight. But, if it is true that the EU is acting in bad faith and making such threats, UKGOV and Parliament would perhaps be justified responding to the threats with the New Powers. Even if that breaks international law, the rest of the world may well recognise that the UK needed to act this way to protect its interests against a hostile party, and the reputation damage may even go away, perhaps replaced by enhanced respect.
In the Daily Telegraph of 14 September, William Hague argues strongly that the UK is such an upholder and defender of international law, that to break it could cause widespread damage. He may be right. His answer for the UK, if the EU is itself acting inappropriately, is to use the arbitration mechanism for disputes and proportionate measures provided for in the Withdrawal Agreement. That too is reasonable. However, international street-fights are perhaps not normally sorted in court.
Both the EU and the UK declared their intent to do a trade deal. Perhaps both are to blame for the lack of progress in negotiations on key elements. The EU has previously advocated a Canada style agreement. UKGOV appears happy to have one, according to Boris Johnson. Is not the answer staring them in the face, and do they not owe it to their citizens to get it done now and move on as independent partners and allies.? There are real enemies in the world; for friends to create an acrimonious divorce for the sake of brinkmanship defies common sense.