On 13 June 2022 the UK government introduced a Bill that will authorize it to unilaterally re-write key terms of the Northern Ireland Protocol (“Protocol“) which is part of the Withdrawal Agreement it made with the EU on Brexit, less than 3 years ago.
Although trade intricacies between Northern Ireland and the rest of Britain may not be high on our priorities here in Canada, the fact that this Bill has been introduced at all should be of concern to those who believe in commitment to international law.
Let me explain why I say this.
What the Protocol Says
In 2020 the UK, which includes Northern Ireland, left Europe’s single market. The seas around the island of England, Scotland and Wales are a controllable customs border. But there is no natural or hard border between Northern Ireland and the Irish Republic which remains part of the EU single market. The UK has prior comitments to keeping the island of Ireland border free, to preserve peace and security there. The Protocol is part of the solution that was negotiated to accomodate the situation. It allows Northern Ireland to remain within the EU single market, but draws a border line in the Irish Sea. The Bill permits checks on goods entering Northern Ireland. It contains enforcement provisions, and gives the European Court of Justice a role in applying and interpreting the Protocol.
The UK agreed to give legal effect and primacy to the provisions of the Protocol in UK domestic law.
What the New Bill Does
But Boris Johnson’s recent Bill “excludes” key provisions of the Protocol regarding checks on goods entering Northern Ireland, regulation of goods, and subsidy rules. It also gives the UK government the power to make domestic laws in place of the excluded provisions. These domestic laws will take priority over the Withdrawal Agreement and Protocol.
The Bill also excludes any provisions giving the European Court a role in enforcing the Protocol, and excludes its dispute settlement provisions.
If the Bill is enacted, UK courts will no longer be able to recognize and give effect to “excluded” provisons of the Withdrawal Agreement and Protocol.
Breach of International Law?
The Withdrawal Agreement is an international treaty between the UE and the UK. Unquestionably the UK has sovereignty over its domestic law, but international law requires signatories to perform their treaty obligations in good faith.
Mr Johnson’s government contends there is no breach of international law. How?
There is a safety valve provision in the withdrawal agreement (article 16) which permits measures, limited to what is strictly necessary, to remedy the situation if the Protocol leads to serious economic or other difficulties. But the UK has not invoked that provision (although it has reserved its right to do so).
Instead the UK government relies on the international law doctrine of ‘necessity’ for the non-performance of its Protocol obligations. It claims the Protocol has caused diversion of trade and economic difficulties amounting to grave and imminent peril so the government must “reluctantly” introduce measures that “envisage the non-performance of certain obligations.” The ‘necessity’ doctrine applies only in very exceptional cases. Most legal commentators disagree that the current situation in Northern Ireland warrants the necessity defence. Moreover, the UK freely negotiated the Withdrawal Agreement when it was aware, according to its own documents, that customs declarations and checks between Northern Ireland and the rest of the UK would be highly disruptive. This undermines a plea of ‘necessity’.
That is why I say the decision to introduce the Bill (whether it ultimately passes or not) should be of concern to us in Canada. The UK seems to be “blowing its nose” at the EU and at international law, reminiscent of the French soldier’s taunt of King Arthur in Monty Python’s Holy Grail. This is not an attitude we are used to seeing from Her Majesty’s government. We should perhaps be concerned, because if it contributes to wider disrespect for international law, it could mean a less secure world order for all of us.
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