London Calling 8 – Pacta sunt servanda – The Internal Markets bill and what it means for the Rule of Law, Brexit and the future of the UK

Blog Post by Irina von Wiese, former LibDem MEP

London Calling is the European Liberal Forum’s column aimed at bridging the Channel.

As a universal principle, the Latin phrase pacta sunt servanda (‘agreements must be kept’) is not difficult to understand. In international law, it means that ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith[1]. ” This basis of good faith implies that a party to a treaty cannot invoke provisions of domestic law as justification for breach of its treaty obligations. There is very vague exemption under international law in case of a ‘compelling change of circumstances’.

So what happened in the past eight months that was ‘compelling’ enough for the UK government to abandon its commitments under the EU-UK Withdrawal Agreement?

Arguably, nothing unpredictable. Most certainly, nothing compelling.

From the day Brexit appeared on the European horizon, the problem for the island of Ireland was crystal clear. The border between Northern Ireland the Republic of Ireland – the only land border between the UK and the rest of Europe – has significance beyond economic prosperity on either side. Keeping this border open and free from physical barriers is one of the core provisions of the 1998 Good Friday Agreement, the basis for the fragile peace between Unionists and Republicans in the north. Consequently, free trade has to continue either between the EU and Northern Ireland on its own, or between the EU and the UK as a whole – the latter now increasingly unlikely. Attempts to solve this conundrum – from ‘alternative border arrangements’ to the famous ‘backstop’ proposed by Theresa May – were predictably futile.

To ‘get Brexit done’, Johnson effectively relinquished Northern Ireland to the EU. The Northern Ireland Protocol, an integral part of the Withdrawal Agreement, provides that goods moving from Great Britain (England, Wales and Scotland) to Northern Ireland will be subject to EU tariffs on leaving Great Britain if they are ‘at risk’ of being moved through Northern Ireland into the Republic of Ireland, from where they can circulate freely within the EU. The Protocol does not itself define what constitutes an ‘at risk’ good, but explicitly allocates this classification to the so-called Joint Committee, a UK/EU body. The default position is that goods are ‘at risk’ until the Committee agrees otherwise. This, of course, is not a technicality, it is crucial for the EU to protect its single market and consumers from subsidised, or substandard, UK products. It also means that some kind of EU border controls will have to take place either side of the Irish Sea which separates Great Britain from Northern Ireland.

But a border in the Irish Sea would leave Northern Ireland de facto in the EU single market and customs union, and politically much closer to the south – something neither the Unionists in Northern Ireland, nor the Conservative government in Westminster could stomach.
So, some time during the pandemic lockdown, ministers drafted the aptly named ‘Internal Market’ bill, reallocating the classification of ‘at risk’ goods’ from the Joint Committee to the UK. In addition, it removes the applicability of EU state aid rules to component parts made in Great Britain but incorporated into Northern Irish goods, further undermining the ‘level playing field’ with the EU.

On September 8, a day before the Internal Market bill was officially published, the UK’s Northern Ireland Secretary publicly admitted that the bill, if enacted, will breach international law. A fact which would have been difficult to hide since Clause 45 of the bill spells out that the relevant provisions have effect ‘notwithstanding any relevant international or domestic law with which they may be inconsistent’.

In other words: the breach of a binding international treaty is not just an unintended consequence; it is deliberately written into proposed domestic legislation before the latter is even put to Parliament.
The repercussions of this event cannot be overstated. It marks the departure of a nation which claims to have invented the Rule of Law, from the rule of law.

In economic terms, it may well spell the end to any free trade with the UK’s closest allies. Both the EU and the United States – guarantor of the Good Friday Agreement – have indicated that the Internal Market bill places obstacles in the way of future trade deals. Joe Biden, in particular, feels strongly about peace in Ireland and is not likely to accept any arrangement which may lead to the re-establishment of a hard border between north and south. As for the EU, the Commission has instigated proceedings against the UK and significantly hardened its negotiating tone – a comprehensive free trade agreement now looks less likely than ever.
In political terms, the repercussions are wider and more troubling. Even before the Internal Markets bill, the UK was portrayed by EU negotiators as a dubious partner because of its apparent willingness to renege on its commitments. Now, its reputation as a trustworthy partner is in tatters. So is the moral high ground the UK once claimed vis-à-vis the rest of the world. Even domestically, ministers struggle to explain to citizens why they have to comply with tough lockdown restrictions when their Prime Minister is seen to rip up binding agreements.
If you scratch your head in bewilderment, you are not alone.

Why on earth would Boris Johnson do this?

There are three theories, none of them redeeming.

The first is a grave miscalculation: an ill-judged attempt to pressurise the EU into a deal, a threat never meant to be implemented. If so, it clearly backfired.

The second is incompetence: an admission that the Withdrawal Agreement – hailed in January as a huge success – is not such a great deal after all. By moving the EU external border to the Irish Sea, it pushed the United Kingdom, already strained by the Scottish quest for independence, onto even shakier ground.

The third theory is more cynical. It assumes that Johnson never intended to keep to the terms of the Northern Ireland Protocol and only signed it to secure his election and be able to tell voters that he had ‘got Brexit done’. Once the pandemic had overshadowed Brexit, the moment had come to fix the problem. To sacrifice international credibility for the sake of the Union of the Kingdom, came natural to a Prime Minister who owes his success to his own lies. After all, his voter base is more interested in the continuation of their own Union than in the one across the Channel.

So what now?

The fate of the Internal Market bill is unclear.
Understandably, there was unease even among Johnson’s 80-strong majority in the House of Commons, and the bill was temporarily halted in the House of Lords. Regardless of the outcome of this political tug-ofwar, however, the damage is done. Britain’s reputation has been tainted, and we will have work doubly hard, and twice as long, to regain the trust of virtually all of our friends.

 

[1] Article 26, Vienna Convention on the Law of Treaties 1980 (https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf )